CLEAN AIR ACT TRANSPORTATION CONFORMITY

PROVISIONS CONTAINED IN H.R. 3, THE

TRANSPORTATION EQUITY ACT: A LEGACY
FOR USERS
HEARING
BEFORE THE

SUBCOMMITTEE ON ENERGY AND AIR QUALITY

OF THE

COMMITTEE ON ENERGY AND

COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
MARCH 2, 2005

Serial No. 10911

Printed for the use of the Committee on Energy and Commerce

(
Available via the World Wide Web: http://www.access.gpo.gov/congress/house

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99907PDF

2005

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COMMITTEE ON ENERGY AND COMMERCE

JOE BARTON, Texas, Chairman
RALPH M. HALL, Texas
MICHAEL BILIRAKIS, Florida
Vice Chairman
FRED UPTON, Michigan
CLIFF STEARNS, Florida
PAUL E. GILLMOR, Ohio
NATHAN DEAL, Georgia
ED WHITFIELD, Kentucky
CHARLIE NORWOOD, Georgia
BARBARA CUBIN, Wyoming
JOHN SHIMKUS, Illinois
HEATHER WILSON, New Mexico
JOHN B. SHADEGG, Arizona
CHARLES W. CHIP PICKERING,
Mississippi, Vice Chairman
VITO FOSSELLA, New York
ROY BLUNT, Missouri
STEVE BUYER, Indiana
GEORGE RADANOVICH, California
CHARLES F. BASS, New Hampshire
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
MIKE FERGUSON, New Jersey
MIKE ROGERS, Michigan
C.L. BUTCH OTTER, Idaho
SUE MYRICK, North Carolina
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
MARSHA BLACKBURN, Tennessee

JOHN D. DINGELL, Michigan

Ranking Member
HENRY A. WAXMAN, California
EDWARD J. MARKEY, Massachusetts
RICK BOUCHER, Virginia
EDOLPHUS TOWNS, New York
FRANK PALLONE, Jr., New Jersey
SHERROD BROWN, Ohio
BART GORDON, Tennessee
BOBBY L. RUSH, Illinois
ANNA G. ESHOO, California
BART STUPAK, Michigan
ELIOT L. ENGEL, New York
ALBERT R. WYNN, Maryland
GENE GREEN, Texas
TED STRICKLAND, Ohio
DIANA DEGETTE, Colorado
LOIS CAPPS, California
MIKE DOYLE, Pennsylvania
TOM ALLEN, Maine
JIM DAVIS, Florida
JAN SCHAKOWSKY, Illinois
HILDA L. SOLIS, California
CHARLES A. GONZALEZ, Texas
JAY INSLEE, Washington
TAMMY BALDWIN, Wisconsin
MIKE ROSS, Arkansas

BUD ALBRIGHT, Staff Director

JAMES D. BARNETTE, Deputy Staff Director and General Counsel
REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE

ON

ENERGY

AND

AIR QUALITY

RALPH M. HALL, Texas, Chairman

MICHAEL BILIRAKIS, Florida
ED WHITFIELD, Kentucky
CHARLIE NORWOOD, Georgia
JOHN SHIMKUS, Illinois
HEATHER WILSON, New Mexico
JOHN B. SHADEGG, Arizona
CHARLES W. CHIP PICKERING,
Mississippi
VITO FOSSELLA, New York
GEORGE RADANOVICH, California
MARY BONO, California
GREG WALDEN, Oregon
MIKE ROGERS, Michigan
C.L. BUTCH OTTER, Idaho
JOHN SULLIVAN, Oklahoma
TIM MURPHY, Pennsylvania
MICHAEL C. BURGESS, Texas
JOE BARTON, Texas,
(Ex Officio)

RICK BOUCHER, Virginia

(Ranking Member)
MIKE ROSS, Arkansas
HENRY A. WAXMAN, California
EDWARD J. MARKEY, Massachusetts
ELIOT L. ENGEL, New York
ALBERT R. WYNN, Maryland
GENE GREEN, Texas
TED STRICKLAND, Ohio
LOIS CAPPS, California
MIKE DOYLE, Pennsylvania
TOM ALLEN, Maine
JIM DAVIS, Florida
HILDA L. SOLIS, California
CHARLES A. GONZALEZ, Texas
JOHN D. DINGELL, Michigan,
(Ex Officio)

(II)

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CONTENTS
Page

Testimony of:
Clifford, Michael, Director, Systems Planning Applications, Metropolitan
Washington Council of Governments, on behalf of the Association of
Metropolitan Planning Organizations .........................................................
Holmes, Brian, Executive Director, Maryland Highway Contractors Association, on behalf of American Road and Transportation Builders Association ............................................................................................................
Holmstead, Hon. Jeffrey R., Assistant Administrator for Air and Radiation, Environmental Protection Agency ....................................................
Liebe, Annette, Manager, Air Quality, Oregon Department of Environmental Quality, Air Quality Division, on behalf of State and Territorial
Air Pollution Program Administrators and Association of Local Air
Pollution Control Officials ............................................................................
Njord, John R., Executive Director, Utah Department of Transportation,
on behalf of American Association of State Highway and Transportation Officials ...............................................................................................
Nottingham, Hon. Charles D., Associate Administrator for Policy, Department of Transportation, Federal Highway Administration .......................
Replogle, Michael, Transportation Director, Environmental Defense .........
Aditional material submitted for the record:
Holmstead, Hon. Jeffrey R., Assistant Administrator for Air and Radiation, Environmental Protection Agency, response for the record ............
Nottingham, Hon. Charles D., Associate Administrator for Policy, Department of Transportation, Federal Highway Administration, response for
the record .......................................................................................................
(III)

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41
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CLEAN AIR ACT TRANSPORTATION CONFORMITY PROVISIONS CONTAINED IN H.R.

3, THE TRANSPORTATION EQUITY ACT: A
LEGACY FOR USERS
WEDNESDAY, MARCH 2, 2005

HOUSE OF REPRESENTATIVES,
COMMITTEE ON ENERGY AND COMMERCE,
SUBCOMMITTEE ON ENERGY AND AIR QUALITY,
Washington, DC.
The subcommittee met, pursuant to notice, at 3:20 p.m., in room
2123 of the Rayburn House Office Building, Hon. Ralph M. Hall
(chairman) presiding.
Members present: Representatives Hall, Shimkus, Otter, Murphy, Burgess, Barton (ex officio), Boucher, Waxman, Green, Strickland, Capps, Solis, and Gonzalez.
Staff present: Mark Menezes, chief counsel for energy and environment; Margaret Caravelli, majority counsel; Peter Kielty, legislative clerk; and Michael Goo, minority counsel.
Mr. HALL. Okay. Thank you for your patience. The subcommittee
will come to order now, and without objection, the subcommittee
will proceed, pursuant to Committee Rule 4(e), which allows members the opportunity to defer opening statements for extra questioning time. I think they all understand that.
The Chair recognizes himself for an opening statement. Today,
the subcommittee holds a hearing on the Clean Air Act provisions
contained in the Transportation Equity Act, a Legacy for Users.
These provisions, developed with our friends across the aisle, are
designed to simplify the conformity process, while maintaining air
quality benefits. I look forward to learning from the panel the
transportation conformity process, and how the suggested changes
to the conformity program will further the development of transportation projects consistent with our air quality goals.
I would like to welcome and thank our esteemed witnesses for
joining us today. All of you have taken your very valuable time
from your important responsibilities to help educate us here today,
and several of you have traveled great distances. For your sacrifice
and your time, we do thank you, and dont be dismayed about a
lack of attendance here. We are about to have a vote, and several
members have gone on to the floor, but they will be back. But if
they do not come back, you have the two most important ones here
now, in our opinion. But seriously, what you say will, of course, be
taken down, put into the record, and all members will have copies
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2
of it. And that is the basic reason for it, and then, we relate back
to this testimony when we write the act, and take our actions.
Our witnesses today represent folks that are involved and are affected by the transportation conformity process itself. The Honorable Jeffrey Holmstead of the Environmental Protection Agency,
and the Honorable Charles Nottingham of the Department of
Transportation and Federal Highway Administration joins us as
Federal partners in the conformity program. It is my understanding that we also have Mr. Njord, Executive Director of Utah
Department of Transportation, with transportation problems himself today. We welcome you to this panel, and thank you for being
with us.
I want to welcome those testifying on behalf of organizations representing planners, air quality officials, and road builders. These
groups work together every day of the year to ensure the continued
development of our Nations transportation infrastructure, while
protecting our air quality, and it is a pleasure to have you today.
A symbol of American freedom is being able to flat drive down
the open road to any destination of ones choosing. It is just that
simple. As this country has grown, so too have our roads and the
number of vehicles on them. Will Rogers once said that the way to
pay for all of our transportation costs was to require everybodys
car to be paid for before they put it on the highway. That might
have worked back in the 1930s, but I am not sure that that would
work today. Recognizing that growth might place some burdens on
the environment, particularly the air quality, the Clean Air Act established a process through which the Environmental Protection
Agency and the Department of Transportation would work together
to continue the expansion of our Nations roads while protecting air
quality, and that is the whole purpose.
I guess, however, the real purpose behind transportation conformity is to ensure that the areas transportation activities are
balanced with the areas air quality goals. With billions of dollars
spent each year on transportation projects, conformity serves as a
check on this development. This check and balance ensures that
projects not only serve to keep our Nation moving and our economy
growing, but also protects our Nations air quality. While recognizing the merits of the cooperative process established by the
transportation conformity program between the metropolitan planning organizations and the State air quality officials in pursuit of
a common goal, we worked with our minority to craft the revised
transportation conformity language. The language reflects a spirited collaborative effort and hours of work. The proposed law increases the time for conformity determinations for transportation
plans and State transportation improvement programs to 4 years.
It is now 2 to 3, and this would increase it to 4, thus easing the
burdens placed on transportation planners, and allowing for better
coordinated demonstrations of conformity.
Also, additions or substitutions of transportation control measures used to control and reduce the emissions would no longer trigger a new conformity determination or revision of the applicable
State implementation plan. The proposed reduction synchronizes
the planning horizons for long term transportation plans with that
of the State implementation plans. A key feature of this adjust-

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3
ment in the planning horizon timeframe is that the Metropolitan
Planning Organization and the air pollution control agency make
the determination to implement a shorter time horizon. Under the
proposed law, before the restrictions occur due to a conformity
lapse, a 12 month grace period is permitted.
So I am gratified to see that this issue is one on which this committee can work together, and I again look forward to hearing from
the conformity experts that are in front of us here, and I want to
thank you for all of your time, and we welcome all of your views
with respect to the current conformity process, and especially, your
opinions on the proposed revisions to the conformity program. And
at this time, I recognize the gentlelady, Ms. Capps, for her opening
statement.
[The prepared statement of Hon. Ralph Hall follows:]
PREPARED STATEMENT

OF

HON. RALPH HALL, CHAIRMAN, SUBCOMMITTEE

AND AIR QUALITY

ON

ENERGY

The Subcommittee will come to order. Without objection, the Subcommittee will
proceed pursuant to Committee Rule 4(e), which allows Members the opportunity
to defer opening statements for extra questioning time.
The Chair recognizes himself for an opening statement. Today, the Subcommittee
holds a hearing on the Clean Air Act provisions contained in the Transportation Equity Act: A Legacy for Users. These provisions, developed with our friends across
the aisle, are designed to simplify the conformity process while maintaining air
quality benefits. I look forward to learning from the panel the ins and outs of the
transportation conformity process and how the suggested changes to the conformity
program established by the Clean Air Act will further the development of transportation plans, programs and projects consistent with air quality goals.
I would like to welcome and thank our esteemed witnesses for joining us today.
Our witnesses represent folks involved in or impacted by the transportation conformity process. The Honorable Jeffrey Holmstead of the Environmental Protection
Agency and the Honorable Charles Nottingham of the Department of Transportation, Federal Highway Administration join us as Federal partners in the conformity program.
I also want to welcome those testifying on behalf of organizations representing
transportation planners, air quality officials, and road builders. These three groups
work together each day to ensure the continued development of our nations transportation infrastructure while protecting air quality. It is a pleasure to have you
join us here today.
A symbol of American freedom is being able to drive down the open road to any
destination of ones choosing or for that matter with no particular place to go. As
this country has grown so to have our roads and the number of vehicles on those
roads. Recognizing that this type of growth may place burdens on the environment,
particularly air quality, the Clean Air Act established a process through which the
Environmental Protection Agency and the Department of Transportation would
work together to continue the expansion of the nations roads while protecting air
quality. The purpose behind transportation conformity is to ensure that an areas
transportation activities are balanced with the areas air quality goals. With billions
of dollars spent each year on transportation projects, conformity serves as a check
on this development. This check and balance ensures that projects not only serve
to keep our Nation moving but also keep our Nations air quality in good stead. Taking a cue from the cooperative process established by the transportation conformity
program bringing together metropolitan planning organizations with state air quality officials in pursuit of a common goal, we worked with our minority to craft the
revised transportation conformity language.
I favor a practical policy of simplifying things so as to make the accomplishment
of a goal more certain. To this end, in collaboration with our Democratic counterparts on the Committee, we drafted the provisions contained in H.R. 3 The Transportation Equity Act: A Legacy For Users, which we are here to discuss today. The
language reflects a spirited collaborative effort and hours of work:
The proposed law increases the time for conformity determinations for transportation plans and State transportation improvement programs to 4 years thus

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4
easing the burdens placed on transportation planners, and allowing for better
coordinated demonstrations of conformity;
Additions or substitutions of transportation control measures, used to control and
reduce emissions would not trigger a new conformity determination or revision
of the applicable State Implementation Plan;
The proposed reduction in planning horizons synchronizes the planning horizons
for long term transportation plans with that of State implementation plans. A
key feature of this adjustment in the planning horizon timeframe is that the
Metropolitan Planning Organization and the air pollution control agency make
the determination to implement a shorter time horizon; and
Under the proposed law, before the consequences of a conformity lapse occur a 12month grace period is permitted.
I am gratified to see that this issue is one in which this Committee can work together on. Again I look forward to hearing from the conformity experts and I want
to thank you all for your time. We welcome all of your views with respect to the
current conformity process and especially your opinions on the proposed revisions
to the conformity program.

Ms. CAPPS. Thank you, Mr. Chairman, for holding this hearing
to consider the Clean Air Acts conformity program, and your nostalgia about the wide open spaces of Texas, and I grew up in Montana, you know. We used to sing dont fence me in, right? I dont
know. Those days are gone forever, right?
Mr. HALL. I agree.
Ms. CAPPS. All right. I had hoped, and thank you, witnesses, for
being here today. I had hoped we would assert the committees jurisdiction over the air quality section of the transportation bill.
Clearly, this subject matter is one that falls within the jurisdiction
of this committee, and is indeed worthy of examination, and I think
we owe it to Chairman Barton and Dingell, Ranking Member Dingells efforts to address some of the air quality issues contained in
last sessions Senate transportation bill. The House bill, I believe,
strikes a better balance than S. 1072. While we have made great
strides reducing air pollution since Congress enacted the Clean Air
Act, much more remains to be done. When it comes to clean air,
our priorities should be simple, to cut air pollution that is causing
tens of thousands of premature deaths, creating heart and lung
problems in senior citizens, and giving too many of our schoolchildren asthma.
And we must do it expeditiously. American families shouldnt
have to wait any longer for clean air, clear air. As a public health
nurse, I am very concerned about the impacts that increased traffic
and air pollution will have on public health. With the House scheduled to reconsider transportation legislation as possibly as much as
$300 billion in new transportation spending, a strong conformity
program is needed now more than ever. The conformity program
helps to ensure the Nations transportation needs are satisfied
without sacrificing our health and the air we breathe, and I think
this can be done. Since its implementation, the conformity program
has proven to be a key tool used by transportation and air planners
to keep harmful air pollution in check. We should not eliminate
this crucial program, and we should not allow transportation
projects to go forward regardless of their impact on air quality and
on public health.
California, where I am from now, suffers from some of the most
serious air quality problems in the Nation. It is no surprise that
as our population increases, the level of congestion on our highways and roads go up. For instance, in many parts of our State,

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the total vehicle-miles traveled each day has grown much faster
than the rate of population growth. The conformity program recognizes that States like California will face serious challenges in the
area of air quality and transportation planning. Without careful
forecasting, these demands could overwhelm our ability to keep our
air clean.
As we consider changes to the Clean Air Act, we must ensure
transportation choices contribute rather than undermine achieving
healthful air quality. Finally, although todays hearing is not about
this, I hope the committee will seek ways to enhance our Nations
air quality also by promoting more options to fight congestion
through transit, through passenger and freight rail, smarter development, better land use planning, and other strategies. By providing better resources to States and local communities, we will ensure a healthy and safe environment for us all. Thank you, and I
look forward to yieldingto the testimony of our witnesses, and
yield back the balance of time.
[Additional statements submitted for the record follow:]
PREPARED STATEMENT

OF

HON. CHARLIE NORWOOD, A REPRESENTATIVE

FROM THE STATE OF GEORGIA

IN

CONGRESS

Thank you, Mr. Chairman.

During my tenure in Congress Ive been a consistent supporter of commonsense
environmental policies that will ensure clean air and water. However, striking the
balance between necessary urban developments and maintaining acceptable air
quality is something we urgently need to find.
Take a city that is busting out at the seams, like Atlanta. Expanding the cities
roadways is absolutely vital to the residents there. They can not afford to wait six
months during a conformity lapse to finish a major artery of the city.
We must find this balance and that is why I am so pleased the distinguished
Chairman has decided to hold this hearing today. I am looking forward to our witnesses testimony and guidance. I yield back.
PREPARED STATEMENT OF HON. C.L. BUTCH OTTER, A REPRESENTATIVE
CONGRESS FROM THE STATE OF IDAHO

IN

Mr. Chairman, I appreciate the opportunity to sit down today and discuss the
steps necessary to jump-start critical highway improvement projects throughout our
country. Our current highway planning process has been weighed down by excessive
environmental and ESA restrictions. The length of time needed to acquire a series
of permits, both state and federal, before construction can begin needlessly delays
the much-needed improvements to our highway system.
Our nations economy depends on an efficient and affordable transportation system to move people and products across the country and around the world, and
these unnecessary delays harm much more than a few miles of road. In Idaho alone
$58 million in highway projects is currently tied up in bureaucracy. That is money
that has already been appropriated, spent by the government with the intention of
maintaining and improving roads throughout my state. Instead it is sitting unused,
waiting for some bureaucrat to sign a paper while Idahos roads continue to deteriorate.
The highway bill that we will consider on the floor in the coming weeks is critical.
Investing in our nations roads and transit systems is wise not only for the present
but also for the future, and a meaningful authorization bill would provide for economic development, job creation, and safety improvements on our Federal Highway
System. This is why I support the provisions we have gathered here to discuss.
However, I am concerned that they merely scratch the surface, when what we
need is serious reform to address the flaws in the environmental and historical permitting process. No amount of money passed by Congress in an authorization or appropriation bill benefits the citizens of this country if it gets tied up for years in
needless bureaucracy. It is crucial that as we address this bill this year we take
the steps necessary to see that highway money actually turns into pavement.
Thank you.

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PREPARED STATEMENT OF HON. MICHAEL C. BURGESS, A REPRESENTATIVE
CONGRESS FROM THE STATE OF TEXAS

IN

Mr. Chairman, I would like to thank you for holding this important hearing.
My Congressional District, like those of Chairmen Barton and Hall, is located in
the Dallas-Fort Worth Metroplex in North Texas. I believe that one of the North
Texas regions most important and challenging issues over the next decade will be
how best to clean up the air that we breathe.
There is a significant commitment to clean the air from all the stakeholders in
the Dallas-Fort Worth area. This includes the EPA, the State of Texas, the Cities
of Fort Worth and Dallas, and the North Texas Clean Air Coalition, which is comprised of the North Texas Council of Governments and community leaders. It is important to note that North Texas has grown rapidly over the last decade and the
degree of air pollution has not increased.
I support efforts to clean up our airI believe that it is one of the most important
legacies that we can leave our children. As a former member of the Transportation
and Infrastructure Committee, however, I am concerned about the transportation
conformity provision in current law. I do not believe that taking away transportation funding from the Dallas-Fort Worth region will result in improved air quality.
In fact, I believe eroding our transportation funding would adversely affect air
quality because studies have shown that automobiles operate more efficiently at
around 60 miles per hour than at lower speeds such as those cars idling during
bumper-to-bumper traffic in bottleneck areas, such as on Interstate 35 East in my
district. A more efficient motor decreases the amount of ozone-creating pollutants
that are released into the air. This is especially important to the Dallas-Fort Worth
region because EPA studies have shown that our regions air quality is especially
affected by mobile-source (automobile) pollution.
I am looking forward to hearing from our witnesses this afternoon about how this
years Highway Reauthorization bill will address the subject of Transportation Conformity.
I yield back.

PREPARED STATEMENT

OF

HON. JOE BARTON, CHAIRMAN, COMMITTEE

AND COMMERCE

ON

ENERGY

Thank you, Mr. Chairman. The issue of transportation conformity represents the
intersection between development and environmental protection. Protection of the
nations air quality while not hindering the continued development and expansion
of this Nations transportation system is an attainable goal. I applaud any enhancements that look to make a process run more efficiently and with more success.
The provisions we are examining today clearly move the ball forward in terms of
aiding states and localities by providing them more time to plan thus enabling them
to keep their transportation programs intact and on schedule. This prevents billions
of dollars of funding from being tied up when the goal is continued transportation
development while protecting air quality.
I would like to take a moment to focus on the fact that the Clean Air Act transportation conformity provisions contained in the current transportation bill, H.R. 3,
remain the same as those in H.R. 3550, from the prior Congress. In the 108th Congress we worked successfully with our friends across the aisle on crafting these provisions. This spirit of bi-partisan cooperation on this issue continues into the 109th
Congress. It is my sincere hope that this example reflects a renewed commitment
to work together on various issues, including energy legislation.
For a subcommittee that has much work in front of it on energy and air quality
issues, it bodes well that on such a complex issue, as transportation conformity, we
can work together to come to a positive resolution. It is my hope and preference that
a positive dialogue, continue with our friends on the other side of the aisle, as the
Committee moves forward in this legislative session.
I thank the Chairman for having this hearing and look forward to the testimony.
I yield back the balance of my time.

Mr. HALL. Thank you. On our first panel, we have the Honorable
Jeffrey R. Holmstead, Assistant Administrator for Air and Radiation, Environmental Protection Agency, in charge, I understand,
of all activities at EPAs Office of Air and Radiation, associate
counsel to our President, with a long record of environmental serv-

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ice and knowledge, and we thank you for bringing that knowledge
to us.
We have Charles D. Nottingham, Associate Administrator for
Policy, Department of Transportation, Federal Highway Administration, who has previously served as counsel to the U.S. House of
Representatives, so he has been with us from time to time.
And we have, sitting behind Mr. Nottingham, recognize a man
that has given great service to State, country, and Nation, James
Shrouds, who is Director of the Federal Highway Administration,
Office of Natural and Human Environment. Mr. Shrouds is scheduled to retire this week from Federal service, after a very illustrious 40 year career at the FHWA. During his long career, Mr.
Shrouds frequently provided technical assistance to the Energy and
Commerce Committee, and to other Congressional committees, is
lauded. Mr. Shrouds is esteemed throughout the transportation
and air quality community as a leading expert on air quality conformity for highways. The committee wishes to recognize his contribution and express our appreciation to an exemplary and dedicated public servant. We are honored to have you here.
Now, and I recognize, on this panel, also, Mr. Njord, who is Executive Director of the Utah Department of Transportation, responsible for transportation planning for the 2002 Olympic Winter
Games. He is very versatile. He is a past President of the American
Association of State Highway and Transportation Officials. We
thank you three, and if you will be patient with us once again, we
have some votes going on over there, and I am going to go over and
try to be back within 15 minutes.
And without objection, Mr. Njord will join the first panel.
I am going to vote, and I will be back. Thank you. We used to
have a sign on our abstractors door there, back in the 1930s, when
they just couldnt afford to miss a sale, and if he would go across
the street to get coffee, it would say going for coffee, be back in 5
minutes, been gone 3. So that is what I am telling you right now.
The Chair recognizes Mr. Boucher, the gentleman from Virginia,
for an opening statement.
Mr. BOUCHER. Mr. Chairman, Iin view of the time that we
have, and the number of witnesses that we have today, will simply
submit mine for the record, and I think it would be appropriate at
this time to go on with our testimony.
[The prepared statement of Hon. Rick Boucher follows:]
PREPARED STATEMENT

OF

HON. RICK BOUCHER, A REPRESENTATIVE IN

FROM THE STATE OF VIRGINIA

CONGRESS

Thank you, Mr. Chairman. I commend you, for the bipartisan work which has
been performed in drafting these Clean Air Act Amendments and for appropriately
exercising this Committees jurisdiction by holding todays hearing on the issues
contained in the transportation legislation which fall within the scope of our authority.
Today we will hear from a variety of witnesses with expertise in both air quality
and transportation planning who will address the current Clean Air Act conformity
requirements as they relate to transportation planning and suggest specific changes
which could improve the process.
Under the Clean Air Act, regions that have not attained one or more of the six
National Ambient Air Quality Standards must develop a State Implementation Plan
outlining how they will bring the area into attainment. Section 176 of the Clean Air
Act prohibits federal agencies from funding projects in these areas unless the

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projects conform to the SIP. In other words, projects must not affect air quality in
the region in a manner which would delay attainment of the air standards.
Because new road projects lead to an increase in vehicle miles traveled and therefore to increased emissions in an area, the Act requires that a non-attainment areas
Transportation Improvement Plan show that the planned transportation projects in
an area will conform to the SIP. If the TIP does not show conformity, the projects
in question are deemed ineligible for federal funding and there is a lapse in the area
until conformity of the plans is achieved.
The process associated with proving conformity under Section 176 of the Clean
Air Act is complicated and involves the coordination of many planning activities
such as the SIP, TIP and long range transportation planning. Many have raised concerns that the differing time lines associated with the development of various plans
leads to a process that is less coordinated than it could be resulting in lapses of conformity. Others have argued that the process is working and that any changes could
be detrimental to a regions air quality. The provisions contained in H.R. 3 represent
a compromise which would alter the current process to allow for less frequent demonstrations of conformity, the ability to shorten the planning horizon and provide
for a 12 month grace period before a lapse would be declared.
Specifically, H.R. 3 would change the frequency of conformity determinations for
both the TIP and the long range Regional Transportation Plan to once every four
years as opposed to the two year and three year respective cycles under current law.
The proposed legislation would also alter the period of time for which conformity
must be demonstrated. Under current law, conformity must be shown for a minimum of 20 years. H.R. 3 would allow an area to reduce this time horizon to 10
years with the agreement of the relevant air quality agency and the Metropolitan
Planning Organization. H.R. 3 would additionally allow substitutions of Transportation Control Measures in a SIP without revisiting the SIP approval process or
making a new conformity determination provided that the new measures achieve an
equal or greater emissions reduction. Finally, the measure would add a new oneyear grace period in the event of a conformity lapse, allowing a 12 month period
in which to demonstrate conformity before federal funding is frozen.
I am interested in hearing from the witnesses a summary of their experiences
with the transportation conformity requirements, whether changes to the process
are needed and if so what changes would best meet the dual goals of improving both
transportation infrastructure and air quality.
Thank you, Mr. Chairman.

Mr. HALL. As usual, you are very generous. Thank you very
much. All right. Mr. Nottingham, the Chair recognizes you for,
hopefully, 5 minutes, but with your kind patience, and your demand on your time, we will grant you the time that is actually
needed. And thank you, sir.
Mr. NOTTINGHAM. Thank you, Chairman Hall, and members of
the committee. Thank you for this opportunity to discuss transportation and air quality. I do ask that my written statement be made
part of the record.
Mr. HALL. Without objection.
STATEMENTS OF HON. CHARLES D. NOTTINGHAM, ASSOCIATE
ADMINISTRATOR FOR POLICY, DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION; HON. JEFFREY R. HOLMSTEAD, ASSISTANT ADMINISTRATOR FOR AIR
AND RADIATION, ENVIRONMENTAL PROTECTION AGENCY;
AND JOHN R. NJORD, EXECUTIVE DIRECTOR, UTAH DEPARTMENT OF TRANSPORTATION, ON BEHALF OF AMERICAN ASSOCIATION OF STATE HIGHWAY AND TRANSPORTATION OFFICIALS

Mr. NOTTINGHAM. Thank you. With me, as you noted, Mr. Chairman, earlier, in the front row behind me, is Jim Shrouds, the Director of the Federal Highway Administrations Office of Natural
and Human Environment. Meeting the dual challenges of highway
traffic congestion relief and air quality improvement is a high pri-

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ority for the Department of Transportation, as I know it is for the
members of this committee. Secretary Mineta has noted that one
of the core principles of the Departments reauthorization proposal
is to ensure an efficient infrastructure, while retaining environmental protections that enhance our quality of life.
Over the last 30 years, we have made remarkable progress in reducing air pollution, especially from transportation sources, and accomplished this during a period of significant growth in population,
gross domestic product, and vehicle miles traveled. Reauthorization
of the surface transportation programs presents a unique opportunity to continue progress in air quality improvement, and at the
same time, make gains in reducing congestion. New conformity provisions should provide flexibility, streamline the conformity process, but ensure that air quality improvement continues.
A failure to meet a conformity determination deadline is referred
to as a conformity lapse, and during a lapse, use of Federal-aid
highway and transit funds may be restricted to certain types of
projects, such as highway safety projects. The administrations conformity proposals would help address concerns that lack of synchronization in the transportation and air quality planning processes
can contribute to lapses in conformity. While transportation plans
have very long planning horizons, and are updated frequently,
most air quality plans have very short planning horizons, and are
updated less frequently.
The administration has proposed to better align the transportation and air quality planning horizons, and update cycles for
transportation conformity, to better integrate the planning processes. Although the administration proposes limiting the conformity analysis timeframe to a minimum of 10 years, the provision
would also require a regional emissions analysis for the last year
of the transportation plan, which covers at least a 20-year period.
However, the emissions analysis would be for informational purposes only. We continue to recommend including these provisions
in the next reauthorization act. H.R. 3 reintroduces the same conformity provisions contained in H.R. 3550 from the 108th Congress,
and the administration expressed its position on a number of these
proposals last year in a letter to the conferees.
For example, the administration has objected to the 12 month
grace period for demonstrating conformity in the House bill. Instead, we support lengthening the transportation and air quality
update cycles to 5 years, which would better align with the time
periods required in other Clean Air Act regulatory requirements.
Current law requires conformity updates every 3 years, while H.R.
3 proposes a 4 year cycle with a 12 month grace period before
lapse. We believe that our proposed 5 year cycle will be easier to
implement.
In conclusion, I want to assure you that the FHWA is committed
to continue the progress we have made in reducing motor vehicle
emissions, and strongly supports the goals of the Clean Air Acts
transportation conformity provisions. We are proud of the successes
that have been achieved through flexible funding for innovative
transportation projects that improve air quality, and through improved cooperation between transportation and air quality agencies. However, continued progress will require improved coordina-

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tion of the transportation and the air quality planning processes.
We believe that enactment of the administrations conformity proposals will provide the tools for better coordination, and will do
much to help States achieve their transportation and air quality
goals.
Mr. Chairman and members of the committee, this concludes my
statement. I look forward to working with you for reauthorization
of the surface transportation programs, and I will be pleased to answer any questions you may have.
[The prepared statement of Charles D. Nottingham follows:]
PREPARED STATEMENT OF CHARLES D. NOTTINGHAM, ASSOCIATE ADMINISTRATOR FOR
POLICY, FEDERAL HIGHWAY ADMINISTRATION, UNITED STATES DEPARTMENT OF
TRANSPORTATION
Mr. Chairman and Members of the Subcommittee, thank you for this opportunity
to discuss transportation conformity.
Meeting the dual challenges of congestion relief and air quality improvement is
a high priority for all of us at the Department of Transportation, as I know it is
for members of this Committee. In the Transportation Equity Act for the 21st Century (TEA-21), you gave us new tools and authorities to assist us in achieving this
goal, and we are proud of the progress that has been made. In reauthorization, the
Department wants to continue to build upon the successes of TEA-21 and the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA). Five key performance
goals, including the protection of the human and natural environment, form the
basis for the Presidents FY 2006 budget request. Under Secretary Minetas leadership, these goals will help us develop a safer, simpler, and smarter national transportation system for a strong America.
The Department has articulated a set of core principles and values that have
guided development of the Safe, Accountable, Flexible, and Efficient Transportation
Equity Act of 2003 (SAFETEA), the Presidents proposal for surface transportation
reauthorization, introduced in the 108th Congress on May 15, 2003, as H.R. 2088.
We plan to build on the successes and lessons of TEA-21. We seek to enhance the
safety and security of all Americans, even as we increase their mobility, reduce congestion, and grow the economy. We want to ensure an efficient infrastructure while
retaining environmental protections that enhance our quality of life.
In my testimony today, I will address two main points. First, I want to assure
you that progress has been made in reducing transportation-related emissions of air
pollutants, and that the Department of Transportation is committed to doing its
part to ensure progress continues. Second, I want to restate the commitment of the
Department to work with our transportation planning and air quality planning partners for effective coordination of the transportation and air quality planning processes.
CONTINUED FOCUS ON AIR QUALITY IMPROVEMENTS

As a Nation, we have made remarkable improvements in reducing air pollution,

especially pollution that comes from transportation sources. Where transportation is
a significant source of pollutants, the Environmental Protection Agency (EPA) reports that ozone (formed by the reaction of volatile organic compounds (VOC) and
oxides of nitrogen (NOx)), carbon monoxide (CO), and particulate matter (PM), have
all decreased substantially since 1970. A majority of the areas designated as nonattainment since 1990 now meet national air quality standards. Air quality monitoring data through 2003 shows that all of the original carbon monoxide nonattainment areas, and 66 out of 87 previously-designated coarse particulate matter (PM10) nonattainment areas no longer show air pollution levels that exceed the national
ambient air quality standards. In addition, considering the recently implemented 8hour ozone and PM-2.5 standards, ozone levels nationwide are down 9% from 1990,
and PM-2.5 concentrations have decreased 10% since 1999. And, while the Clean Air
Act (CAA) has led to reduced pollutant emissions from all air pollution sources, the
greatest success can be found in the reduction of motor vehicle emissions: CO emissions have been reduced by 62 percent since 1970, PM-10 emissions reduced by 50
percent, NOx emissions by 41 percent, and VOC emissions by 73 percent from motor
vehicles (see Attachment). In 1970, motor vehicles contributed 69 percent of total
emissions of carbon monoxide, NOx, VOCs, and PM-10. However, by 2002, the motor
vehicle portion of emissions of these pollutants dropped to 43 percent. Most of these

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emissions reductions have resulted from stricter emissions standards, improved engine technology, and cleaner fuels. (The data cited in this paragraph can be found
at the following websites: http://www.epa.gov/ttn/chief/trends/ and http://www.
epa.gov/ttn/chief/trends/trends02/trendsreportallpollutants010505.xls.)
It is especially important to note that these reductions in emissions were accomplished during a period of 41 percent increase in population, 167 percent growth in
gross domestic product (GDP), and 157 percent increase in vehicle miles traveled.
The automotive, fuels, highway, and transit communities have managed to achieve
this success in improving air quality while at the same time working to address increasing demands to improve mobility.
The downward trend achieved in emissions is expected to continue into the future.
Engines and fuels are to become even cleaner under recent EPA-issued regulations
for emissions standards and cleaner fuel requirements. Between 2004 and 2007,
more protective tailpipe emissions standards will be phased in for all passenger vehicles, including SUVs, minivans, vans, and pick-up trucks. This regulation marks
the first time that larger SUVs and other light-duty trucks will be subject to the
same national pollution standards as cars. In addition, the EPA tightened standards
for sulfur in gasoline, which will ensure the effectiveness of low-emission control
technologies in vehicles and reduce harmful air pollution. When the new tailpipe
and sulfur standards are implemented, Americans will benefit from the clean-air
equivalent of removing 164 million cars from the road. These new standards require
all passenger vehicles sold after the phase-in period to be 77 to 95 percent cleaner
than those on the road today, and will reduce the sulfur content of gasoline by up
to 90 percent.
We expect that motor vehicle emissions will be reduced as new heavy-duty vehicles that meet the 2004 emissions standards for heavy-duty engines enter the fleet.
Beginning with the 2007 model, heavy-duty engines for trucks and buses must meet
even tighter emissions standards, and the level of sulfur in diesel fuel must be reduced by 97 percent from existing standards by mid-2006. As a result, after a phasein period, each new truck and bus will be more than 90 percent cleaner than the
models made before the 2004 standards were in effect. In addition to tighter standards, the Federal Transit Administration (FTA) has been working with industry to
develop and demonstrate low- and zero-emissions advanced propulsion technologies
for transit buses, including hybrid-electric, battery electric, and fuel cell-powered
buses. Under FTA/DOT leadership, a national program is underway to accelerate
the development and commercial viability of these advanced technologies.
However, the Nation as a whole, and the transportation community in particular,
face additional challenges as new air quality standards are implemented. The new
eight-hour ozone and fine particulate (PM-2.5) standards are more stringent, and
many areas across the eastern U.S. and in California have been designated nonattainment under these standards. Some of these areas, including small urban and
rural areas, were designated nonattainment for the first time. Other existing nonattainment areas become larger and involve more jurisdictions under the new standards. The Department and EPA are working with these areas to increase their capacity to deal with new nonattainment designations.
THE TRANSPORTATION CONFORMITY PROCESS: COORDINATING TRANSPORTATION AND AIR
QUALITY PLANNING

Conformity refers to a requirement of the CAA that is designed to ensure that

Federally-funded or Federally-approved highway and transit projects conform to the
air quality goals and priorities established in a States implementation plan (SIP).
For programs administered by the Federal Highway Administration and the Federal
Transit Administration, we determine whether highway and transit projects conform to a States SIP by comparing the total expected air quality emissions from
the whole transportation system within the nonattainment or maintenance area, including the expected emissions that would result from projects contained in the
transportation plan and transportation improvement program (TIP), with the emissions budget for motor vehicles in the SIP.
A failure or inability to make a conformity determination by the required deadline
is referred to as a conformity lapse. During a conformity lapse, the use of Federalaid highway and transit funds may be restricted. Currently, most areas of the country are in conformity. But, as of March 1, 2005, six areas are in a conformity lapse.
Fulfilling the transportation conformity requirements has created stronger institutional links between two sets of agenciestransportation and air qualitythat operated quite independently of each other prior to enactment of the Clean Air Act
Amendments of 1990 (CAAA). This interagency consultation has played a crucial
role in the development of more realistic and achievable transportation and air qual-

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ity plans. In addition, the transportation conformity provisions have been instrumental in fostering improvements to the travel demand and emissions modeling
processes, because of the specificity of data necessary to meet conformity requirements.
We now have more than a decade of experience in implementing the transportation conformity provisions of the CAAA and, despite successes, our stakeholders
indicate that there remain opportunities to improve the transportation conformity
process. Transportation conformity was intended to form strong linkages between
the transportation and air quality planning processes. However, there is a concern
among transportation agenciesand even some air quality agenciesthat transportation plans and SIPs are not synchronized with one another due to different planning horizons and update frequencies. While transportation plans have very long
planning horizons and have to be updated frequently, most air quality plans have
comparatively shorter planning horizons and are updated less frequently.
TEA-21 and the CAA require that transportation plans must cover at least 20
years and be found conforming for that entire time period. However, air quality
plans have much shorter planning horizons, often only 5-10 years, resulting in a
mismatch in which transportation plans must consider emissions controls in the
absence of comprehensive air quality planning. Without comprehensive air quality
planning, there is no analysis of the most cost-effective emissions controls across all
sources beyond the end of the SIP timeframe. If a metropolitan planning organization (MPO) has a conformity problem in the time frame beyond that covered by the
SIP, it has limited options for achieving substantive emissions reductions with programs over which the transportation agencies have control. Traditional transportation control measures (TCMs) have little impact on regional emissions levels, and
such strategies will provide even fewer reductions in the future, as technology continues to reduce total mobile source emissions. MPOs and State air agencies must
work together during the SIP development and transportation conformity processes
to ensure that both air quality and transportation needs are addressed. Although
MPOs bear the responsibility of assuring that plans conform to air quality budgets,
they do not have the authority under current law to establish more effective measures, like vehicle inspection and maintenance programs or reformulated fuels. That
process of identifying future control strategies is the intended purpose of the SIP.
This mismatch can be further aggravated by differences in the frequency with
which transportation plans and air quality plans are updated. Conformity determinations for transportation plans must be made at least every three years, must
be based on the latest demographic and travel information, and must use the latest
emissions estimation model. However, air quality plans are not updated on a regular cycle, and may reflect out-of-date assumptions or may have been developed
using an outdated emissions estimation model. When a conformity analysis is performed in such a situation, it is impossible to determine whether the emissions associated with the transportation plan are truly consistent with the emissions budget
in the air quality plan. This may be because the transportation plan emissions were
estimated using one set of assumptions and model, while the emissions budget was
developed under another. Our stakeholders have reported that such situations have
occurred and are likely to happen again with recent and expected future releases
of a new or updated emissions estimation models.
EPA, in coordination with the Department of Transportation, allows a grace period before States have to use a new emission model for conformity. EPA also requires that SIPs that are started after the official release use the new model. While
the Clean Air Act does not require SIP updates in all cases, EPA guidance encourages States to evaluate the effects of a new model early to plan for any needed SIP
updates to accommodate change.
Our stakeholders indicate that conformity lapses have occurred because areas
could not complete the complex, comprehensive transportation planning and conformity processes within the required time frames, even though they met their emissions budgets. Data collection, model development, public outreach, and consensus
building can all take a considerable amount of time and resources. MPOs also face
other daily challenges of ever-increasing congestion, transportation needs due to economic growth, protection of water quality and other environmental resources, efficient freight management, safety, and security.
Many of our stakeholders have suggested bringing the planning horizons and frequency of updates of both the transportation plans and air quality plans much closer together. Some have suggested a shorter planning horizon, and less frequent updates, while others have suggested a longer air quality planning horizon. We note
that some areas have opted to voluntarily extend their air quality planning horizons.

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In any case, some stakeholders have suggested it is in the best interests of an
effective, integrated process that the air quality plans and the transportation plans
are both using the latest, and most consistent, set of planning assumptions, and
that the air quality plans include the necessary control measures to ensure timely
attainment of the standards. Stakeholders have stated that this would also help anticipate air quality problems and correct them in a more proactive and coordinated
transportation and air quality planning process.
TRANSPORTATION CONFORMITY PROVISIONS IN SAFETEA

Over the years, the Department has worked closely with EPA and State and local
stakeholders to improve the transportation conformity process, and we are committed to continuing to improve coordination of the transportation and air quality
planning processes. We worked with EPA and transportation stakeholders to identify and develop the conformity proposals in SAFETEA, and we believe that enactment of the following provisions would contribute significantly to process improvements.
1. SAFETEA would combine metropolitan long-range transportation plans and
transportation improvement programs into a single transportation plan. A primary
objective is to ensure better consistency between what has been known as the metropolitan long-range transportation plan and the identification/prioritization of specific transportation projects/project phases into what has been known as the TIP.
Since current law requires the TIP to be consistent with the long-range transportation plan, the rationale behind this proposed change is to reduce the number of
actions or products generated by the metropolitan transportation planning process
such as those related to plan/program development or revision, public involvement,
fiscal constraint. This will require only one conformity determination for the plan,
instead of separate conformity determinations for transportation plans and TIPs.
2. SAFETEA would limit transportation conformity to the first ten years of the
transportation plan, the latest year in which the SIP contains a motor vehicle emissions budget, or the completion date of a regionally significant project, if the project
requires approval before the subsequent conformity determination, whichever is
longer. In practice, this means that for areas with SIP planning horizons of less
than 10 years (which is the case for most areas), transportation conformity determinations would cover a minimum of 10 years. In cases where air quality agencies
develop a longer-term SIP with emissions budgets that extend beyond 10 years, the
conformity determination would cover the corresponding, longer time period. This
provision would be added to better integrate the transportation planning and air
quality planning processes, and to ensure that the most cost-effective mitigation
strategies are incorporated into these processes. This proposal would more closely
align the transportation and air quality planning horizons for purposes of transportation conformity. Currently, transportation conformity must be determined for the
entire 20-year planning horizon of metropolitan long-range transportation plans. On
the other hand, air quality SIPs usually cover a much shorter time frame (10 years
or less). Nevertheless, long-range transportation plans must conform to these SIPs
for the full 20 years of the plan. This mismatch in timeframes does not provide for
an integrated planning process in the out-years to select the most cost-effective
strategies for controlling emissions, nor does it allow for the consideration of emissions reduction strategies across different sources of emissions.
3. SAFETEA would require a regional emissions analysis for the last year of the
transportation plan, for informational purposes only. SAFETEA includes a proposal
for regional emissions analysis to be performed for the last year of the metropolitan
Transportation Plan, assuming the conformity analysis is not performed for the entirety of the Transportation Plan. These analyses are intended to be informational
only and serve as input into future updates of the air quality SIP or the Transportation Plan. If the analysis indicates that there are potential long-term air quality
issues, such issues could be more effectively addressed through an integrated transportation and air quality planning process and future updates of the air quality SIP
and/or metropolitan Transportation Plan.
4. SAFETEA would revise the required frequency of transportation plan updates
and conformity determinations from three to five years, except when the MPO chooses
to update the plan more frequently or changes to the SIP trigger a new conformity
determination as provided for in the conformity rule. The Administrations proposed
legislation would encourage (and provide sufficient time to develop) comprehensive
Transportation Plans that consider a diverse array of issues, while giving the MPOs
and State DOTs discretion in updating Transportation Plans more frequently than
the proposed five-year timeframe, if dictated by changing regional or State issues.
Any major change to the transportation plan within the 5-year update cycle, how-

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ever, would result in a new conformity determination. In addition, SAFETEA would
retain the 18-month conformity triggers of the current transportation conformity
rule associated with SIP actions, i.e., a conformity determination on the transportation plan is required if a related SIP action occurs. Together these factors would
ensure that transportation plans remain in conformity with air quality plans, thereby not compromising air quality goals.
CONCLUSION

In conclusion, the Department of Transportation is committed to continuing the

progress made over the last thirty-five years in reducing motor vehicle emissions
and strongly supports the goals of the Clean Air Acts transportation conformity provisions. Improving transportation safety and mobility, while protecting the environment and enhancing the quality of life for all of our communities, are compatible
goals. The Department is proud of the successes that have been achieved through
flexible funding for innovative transportation projects that improve air quality and
through improved cooperation between transportation and air quality agencies.
However, we also recognize that additional improvement in the coordination of
transportation and air quality planning processes can be achieved.
We believe that the Administrations SAFETEA conformity proposals would lead
to better integrating transportation and environmental decision-making and would
effectively advance environmental stewardship while improving our efficiency in
meeting our nations mobility needs.
The American public demands and deserves both mobility and clean air, and we
must remain focused on providing the highest level of service and environmental
protection that we can provide.
Mr. Chairman and members of the Subcommittee, this concludes my statement.
I again thank you for the opportunity to testify today and I look forward to working
with you for reauthorization of the surface transportation programs.
I will be pleased to answer any questions you may have.

Mr. HALL. And for which we thank you, and Mr. Holmstead, recognize you, sir.
Mr. HOLMSTEAD. Thank you, Mr. Chairman. It is a pleasure to
be here this afternoon. With your permission, I would like to submit my written statement for the record.
Mr. HALL. Without objection.
STATEMENT OF HON. JEFFREY R. HOLMSTEAD

Mr. HOLMSTEAD. And make a very brief oral statement, in light

of the time that we have.
Over the last 30 years, we have made amazing progress in reducing pollution from cars and trucks and buses. Within the next year
or 2, any car or truck orany car or SUV or truck that we buy
is going to be about 99 percent cleaner than it was in 1970, and
within a few years after that, all diesel engines will be about 95
percent cleaner than they are today. It really is remarkable what
technology has done to improve our air quality, and especially, the
transportation-related air quality.
Notwithstanding these improvements, there is still more that we
need to do in terms of coordinating transportation plans and air
quality planning, and that is really what conformity is all about.
The administration has already taken a number of steps administratively to try to make this program work better. We think it is
important to continue to have better relationships between the air
quality planners and the transportation planners. We think we
have come a long way over the last 13 years, but we recognize that
there is more that we can do. Mr. Nottingham mentioned several
of the things that the administration has been working, and put in
its own bill, and we look forward to working with the committee
to make sure that we can continue to achieve the dual goals of hav-

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ing an effective transportation infrastructure, while at the same
time, protecting our air quality.
Thank you, and I, too, would be happy to answer any questions
you may have.
[The prepared statement of Jeffrey R. Holmstead follows:]
PREPARED STATEMENT OF JEFFREY HOLMSTEAD, ASSISTANT ADMINISTRATOR, OFFICE
OF AIR AND RADIATION, U.S. ENVIRONMENTAL PROTECTION AGENCY
Thank you, Mr. Chairman and Members of the Subcommittee, for the opportunity
to appear here today to discuss the transportation conformity program in the context of reauthorization of the nations surface transportation law, currently known
as the Transportation Equity Act for the 21st Century (or TEA-21).
There has been considerable progress in achieving better air quality for Americans over the past 30 years. Building upon these air quality successes remains an
important national priority. EPA sees the reauthorization of TEA-21 as an opportunity to employ available tools to improve air quality in ways that could help cities
across the country make progress toward attaining the national air quality standards, including the recently implemented new ozone and particulate matter standards.
According to EPAs latest air quality trends report, air quality monitoring data
show that from 1970-2003, concentrations of all six criteria pollutants have declined,
including the four criteria pollutants that are most affected by the transportation
sector: carbon monoxide, nitrogen dioxide, ozone (smog), and particulate matter soot.
These air quality data are good news, and are attributable to the transportation
and air quality programs currently in place. However, there is still more work that
needs to be done. Currently, there are approximately 160 million Americans living
in 474 counties that are designated nonattainment for the new 8-hour ozone air
quality standard, and 95 million people living in 225 counties that are designated
nonattainment for the new standard for fine particulate matter (or PM2.5). The criteria pollutant emissions have a significant impact on the health of Americans. Particulate matter is linked to aggravation of pre-existing respiratory ailments, reductions in lung capacity, and a significant number of premature deaths. Ozone can impair lung function, cause chest pain and coughing, and worsen respiratory diseases
and asthma. Carbon monoxide can aggravate angina (heart pain).
Even though overall emissions have been reduced, on-road mobile sources continue to be a significant contributor to pollution problems. EPA estimates that in
2003, motor vehicles accounted for 55 percent of total U.S. carbon monoxide emissions, 28 percent of total volatile organic compounds (VOCs; an ozone precursor), 36
percent of total nitrogen oxides (NOX; an ozone precursor), and 5 percent of the traditionally inventoried direct emissions of particulate matter nationwide.
As these data suggest, the integration of transportation and air quality planning
is imperative to achieving clean air. One of the most valuable tools that currently
exists to ensure the integration of these two distinct and different planning processes is transportation conformity. Transportation conformity was established by
Congress in the Clean Air Act Amendments of 1977 and strengthened in the 1990
amendments. The purpose of transportation conformity is to ensure that transportation activities within a region are compatible with the regions clean air goals.
Transportation conformity applies only in areas that have air quality worse than the
national standards (nonattainment areas) or that have violated the standards in the
past (maintenance areas). In the simplest terms, conformity serves as an accounting check to ensure that emissions from a nonattainment or maintenance areas future transportation network fit within the emissions budget included in the areas
air pollution reduction plan.
A benefit of conformity accounting is that it requires state and local governments,
and the public, to consider the air quality impacts of the planned transportation system as a whole, before transportation plans are adopted and projects are built. Billions of dollars every year are spent on developing and maintaining our transportation system. Conformity helps ensure that these dollars are not spent in a manner
that would worsen air quality.
Prior to the 1990 Clean Air Act, transportation planners and air quality planners
often did not consult with one another or even use consistent information regarding
future estimates of growth. To address these problems, the 1990 Amendments explicitly linked the air quality planning and transportation planning processes in a
manner that had not previously existed. Transportation conformity has compelled
the two types of planning agencies to work together through an interagency consultation process to find creative and workable solutions to air quality issues. This

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increased consultation is an important benefit. A 1999 Harvard study on the program, which was jointly funded by DOT and EPA, confirmed that the program has
improved consultation between transportation and air quality planners, and made
that consultation more effective.
While conformity has proven to have certain benefits, some nonattainment and
maintenance areas, particularly those that have been recently designated nonattainment for the new ozone and PM2.5 standards, may face challenges in meeting the
programs requirements. The best way EPA can help areas meet conformity is
through Federal programs to improve air quality. We are currently implementing
three Federal regulatory programs that will achieve dramatic emission reductions
from cars, trucks and nonroad equipment across the country.
First, in 2004, car manufacturers began producing cars and light trucks that meet
EPAs new, stringent tailpipe standards. These requirements are enabled by EPAs
Tier 2 program with low sulfur gasoline standards that ensure the effectiveness of
emission control technologies in all passenger vehicles. Together, these programs
will make passenger vehicles 77 to 95% cleaner. In addition, Tier 2 requires for the
first time that sport utility vehicles, pick-up trucks, and minivans meet the same
standards as cars. Second, EPAs landmark Clean Air Highway Diesel Program will
make heavy duty trucks and buses up to 95% cleaner than todays models. This rule
also requires the production of low sulfur diesel fuel to enable the use of advanced
after treatment technologies. Finally, EPAs Clean Air Nonroad Diesel Program will
achieve reductions of a similar magnitude from non-road diesel engines used in construction, agricultural, and industrial operations. The program uses the same approach we relied on in the Highway Diesel programtough exhaust standards
paired with cleaner fuel requirements. When fully implemented, EPA estimates that
these three programs will yield over $175 billion annual health benefits, preventing
almost 25,000 premature deaths, hundreds of thousands of respiratory illnesses, and
millions of lost work days.
Communities across the nation are counting on these federal programs to help
them demonstrate conformity, and more importantly, attain the new ozone and
PM2.5 standards. Successful implementation of these programs is one of the Administrations priorities. EPA is working closely with the automobile, trucking, engine
manufacturers, and fuels industry to ensure the smooth and timely implementation
of each rulemaking.
In addition to these regulatory programs, EPA has also developed a number of
voluntary programs that are aimed at improving air quality. The Clean Diesel Initiative consists of efforts to reduce emissions from new diesel engines as well as existing diesel engines by 2014. EPA will work with owners of trucks, buses, and
nonroad equipment to encourage the installation of innovative and cost-effective
emission control technology on existing diesel engines. These technologies can result
in reductions of particulate matter, NOX and VOCs. Another non-regulatory approach to achieving emission reductions by providing travel choices is Best Workplaces for Commuters SM. Built around the tax-free commuter benefits in TEA-21
and modeled after the highly successful Energy Star partnership programs, Best
Workplaces for Commuters SM is an EPA-DOT voluntary partnership program that
recognizes employers offering outstanding commuter benefit packages that help reduce traffic and traffic-related emissions. To date, over 1,100 employers from 32
states and Washington, DC, are on the national list of Best Workplaces for Commuters SM covering over 2 million employees.
Finally, EPA has launched another innovative clean air program, the
SmartWay SM Transport Partnershipa voluntary collaboration between U.S. EPA
and the freight industry designed to increase energy efficiency while reducing greenhouse gases and air pollution. To meet these goals, the Partners adopt improved
practices and energy saving technologies such as idling reduction equipment/policies, automatic tire-inflation systems, and speed management practices. More than
120 companies across the country have joined as SmartWay Transport Partners
since the Partnership became operational in February 2004.
As states and localities move forward in implementing the new ozone and particulate matter standards, EPA has taken several steps to improve the overall implementation of the transportation conformity program through regulatory and proposed legislative actions. Under the Clean Air Act, EPA is responsible for writing
the conformity regulations with concurrence by the Department of Transportation
(DOT), as DOT is our federal partner in the implementation of the program.
On July 1, 2004, EPA published amendments to the conformity rules that provide
clear guidance and procedures for implementing conformity for both the new ozone
and particulate matter air quality standards. For example, the final rule describes
when conformity first applies in new nonattainment areas. The Clean Air Act and
transportation conformity rule allow a one-year grace period before conformity ap-

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plies for the new standards, and this grace period begins upon the effective date of
EPAs nonattainment designation for each new standard. In addition, the rule describes the general requirements for ensuring conformity under the new standards,
such as the conformity test(s) that would apply before a state develops its air quality implementation plan (or SIP).
EPA believes the timing of this final rule was critical for ensuring that new nonattainment areas receive the full benefit of the one-year conformity grace period.
New 8-hour ozone nonattainment areas will be required to demonstrate conformity
by June 15, 2005, while areas designated nonattainment for the PM2.5 standard will
be subject to the conformity requirements on April 5, 2006. By finalizing the July
1, 2004 conformity rule, EPA provided new nonattainment areas sufficient time to
prepare their conformity determinations and meet the one-year conformity requirement. EPA is working to ensure that additional PM2.5 guidance will be available by
April 5, 2005 or shortly thereafter.
The July 1, 2004 amendments also incorporate into the rule EPA and DOTs existing guidance implementing the March 2, 1999 conformity court decision, as well as
other rule revisions and clarifications that we believe will ease implementation of
the program in all nonattainment and maintenance areas. Of particular interest is
a revision that streamlines the current requirements for re-determining conformity
after certain SIP actions have occurred (e.g., after EPAs approval of a SIP). This
revision ensures that a new conformity determination is required only for SIPs that
have never been used in the conformity process. Another significant revision implements the Clean Air Act in a more reasonable and practicable manner by allowing
transportation planners to base conformity analyses on planning data and information that is available at the beginning of the conformity process.
We are currently working quickly to finalize two smaller rule changes that will
affect areas recently designated nonattainment for the new PM2.5 standard. The
first of these rulemakings will add the precursors for PM2.5 (NOX, VOCs, sulfur oxides and ammonia) to the transportation conformity regulations and specify when
each of these precursors must be considered in conformity determinations in PM2.5
nonattainment and maintenance areas. We plan to issue this final rule within the
next few months. The second rulemaking will address the procedures for determining localized concentrations (or hot-spots) of particulate matter that could be
caused by transportation projects in certain areas subject to transportation conformity. EPA plans to finalize this rule later this summer.
In addition to these regulatory actions, the Administrations SAFETEA proposal
for the reauthorization of TEA-21 also improves the transportation conformity program and continues to protect public health. We believe that such improvements
will streamline the conformity program to the benefit of state and local governments. I would like to mention two main parts of the Administrations bill that support the transportation conformity process and how they are addressed in the House
bill H.R. 3.
First, the Administration supports modifying the timeframe of conformity analyses to provide consistency between the horizons evaluated for transportation conformity and air quality planning purposes. Under the current conformity rule, transportation planners are required to evaluate transportation-related emissions for at
least 20 years into the future, even if the SIP covers a much shorter time period
(e.g., 10 years into the future). Under the Administrations SAFETEA proposal, the
time frame covered by the conformity analysis would be the longest of the following:
1) 10 years; 2) the latest SIP motor vehicle emissions budget year; or 3) a regionally
significant transportation projects completion date. The Administration also supports the requirement for an informational analysis of the last year of an areas
transportation plan. Such an analysis can provide state and local governments and
the public with a critical early warning of future long-term air quality problems.
Second, the Administration objects to the 12-month grace period provided by
section 1824 of the House bill, and instead supports lengthening the transportation
and air quality update cycles to 5 years as the Administration proposed. EPA currently requires such determinations every 3 years. The Administration believes requiring conformity updates every 5 years is sufficient for meeting Clean Air Act
goals to protect public health.
The Administration opposes inclusion of the provision in section 1824 of the
House bill that would change the point at which a conformity lapse begins. Under
current law, a conformity lapse begins on the date that an area misses a deadline
for determining conformity. However, the House bill would give areas that miss a
required deadline for demonstrating conformity 12 additional months to correct the
problems that caused them to miss the original deadline, such as changing the
transportation plan or state air quality plan.

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EPA opposes this provision because it may make it more difficult for areas to attain the health-based air quality standard by their attainment deadlines. For example, under this provision, if an area is unable to demonstrate conformity by a given
deadline, it may continue to build transportation projects that could potentially be
inconsistent with clean air goals for one additional year before a lapse is imposed.
This provision could also delay the use of SIP air quality emissions budgets in conformity determinations and deprive areas the opportunity to verify whether their
on-road emissions were consistent with the levels required by the state. The current
conformity rule allows areas 18 months to determine conformity when a new SIP
becomes available. The House bill already extends this period of time to 24 months.
An additional 12 months would further delay the incorporation of new air quality
information into the conformity process and undermine the current incentive for
areas to resolve conformity issues and make determinations expeditiously.
In conclusion, EPA is committed to partnering with DOT to continue our progress
in meeting both transportation and air quality goals. Based on our collective experience in implementing the transportation conformity program, we believe the Administrations proposal will build on the success of TEA-21 and will further assist areas
in their efforts to achieve clean air now and in the future. Thank you again for this
opportunity to testify today and discuss our programs with you. I would be pleased
to respond to any questions that you may have.

Mr. HALL. Thank you, Mr. Holmstead. The Chair recognizes Mr.
Njord.
STATEMENT OF JOHN R. NJORD

Mr. NJORD. Thank you very much, Mr. Chairman, and I appreciate you accommodating my schedule, and moving me up on the
agenda. Thank you. My name is John Njord. I am the Executive
Director of the Utah Department of Transportation, and the past
President of the American Association of State Highway and Transportation Officials. And on behalf of all 50 State Departments of
Transportation, as well as the District of Columbia and Puerto
Rico, we thank you and applaud you for having this hearing on air
quality conformity, which is a very important issue for transportation agencies across the country.
When the Clean Air Act was enacted back in 1990, conformity
provisions were created to ensure that transportation plans, programs, and projects were in conformance with States efforts to attain Federal air quality standards. After the 15 years of experience
that we have had with air quality conformity, we believe that it is
time for some refinements to the conformity process that can and
should be made in order to accommodate the new world we are in
today.
Now, why would we be interested in that? We need to synchronize the conformity of the air quality planning process. We
need to make some commonsense adjustments to the frequency of
conformity updates, and also to better coordinate transportation
and air quality strategies to meet the new air quality standards.
Since 1999, there have been 74 nonattainment or maintenance
areas that have experienced a conformity lapse, putting billions of
dollars of transportation projects on hold. In over half of those instances where there has been a conformity lapse since 1999, the
reason for the lapse was simply confusing deadlines between the
various programs. Transportation conformity has become, year in
and year out, a paperwork process that hasnt necessarily improved
air quality, but has taken valuable staff resources which could have
been better used for transportation planning activities.
Let me give you an example from our good colleagues State of
North Carolina. Three years ago, in 2003, they were facing a lapse

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in conformity. In order to beat that deadline, they had to redo their
transportation plan. They were working with the community on a
number of various transportation strategies in North Carolina, and
simply ran out of time. Because of that running out of time, they
fell into a lapsed situation, and for 4 months, they were under a
situation where they could not move forward with over $100 million worth of projects in North Carolina. They were needlessly delayed just because of differing dates. Mr. Chairman, we thank you,
and Mr. Chairman Don Young, for acknowledging the need to make
improvements to the conformity process, and we believe that conformity-related provisions contained within H.R. 3, the Transportation Equity Act, a Legacy for Users, TEA LU, provides a good
start toward fixing that which has been wrong with the conformity
process in the past.
In our detailed testimony, we have suggested some additional,
minor adjustments that I would like to summarize very briefly here
today. First of all, we support the provisions to align conformity
time horizons with the State air quality implementation plans and
emission budgets, to limit conformity to the end of the maintenance
period. However, we recommend that you not give air quality agencies concurrence, which essentially equates to a veto power over the
components of the process. We support provisions to increase and
coordinate the update cycles for metropolitan transportation plans,
together with the statewide transportation implementation programs, but recommend that the cycle be at least every 5 years, instead of the 4 years that are contained currently within H.R. 3.
We support the provisions in H.R. 3 giving MPOs and States 12
months to correct differences, deficiencies prior to invoking a conformity lapse. This puts conformity lapse situation closer to on par
with the other air quality sanctions, which dont kick in for 18
months, when you have a lapse situation. We support the provisions in H.R. 3 that provide for the substitution of STELL transportation control measures, and we urge you to take a second look
at the process to coordinate between the 8 hour ozone standards
and the 1 hour emission budgets, with the interim test with the expanded nonattainment areas.
Now, the goal of air quality conformity is to make air cleaner,
and I think that everybody in the room is interested, and everybody across the country is interested in making air quality better.
We are all interested in that. Conformity is not a transportation
control measure. It is a tool that is used to ensure that transportation plans are compatible with air quality plans, and we would
hope that we would continue to be able to work on that basis, and
Mr. Chairman, I appreciate this opportunity, once again, to speak
to you and to this committee, and would be happy to answer any
questions you might have.
[The prepared statement of John R. Njord follows:]
PREPARED STATEMENT

OF

JOHN NJORD, DIRECTOR, UTAH DEPARTMENT

TRANSPORTATION

OF

Mr. Chairman and Members of the Committee, my name is John Njord. I am Director of the Utah Department of Transportation. I am here today to testify on behalf of the American Association of State Highway and Transportation Officials
(AASHTO) which represents the departments of transportation in the fifty states
and the District of Columbia and Puerto Rico. We want to thank you and the Mem-

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bers of your Subcommittee for convening this hearing to address the transportation
conformity provisions contained in H.R. 3, The Transportation Equity Act: A Legacy
for Users (TEA LU).
In my testimony today I will discuss how H.R. 3 addresses next-generation refinements to the transportation conformity process to build on the experience we
have gained over the last nearly fifteen years. We would like to see procedural modifications to conformity to enable better alignment and greater consistency between
the transportation and air quality planning processes, including analytical tools and
planning assumptions.
The policy objective of the transportation conformity process, which was adopted
with the enactment of the Clean Air Act (CAAA) in 1990, is to coordinate air quality
and transportation planning by ensuring that transportation plans are consistent
with planning for attaining federal air quality standards. The results have been
positive---coordination between air quality and transportation planning has improved and cooperation between air quality and transportation planning office has
increased. The process has resulted in greater awareness of decision makers of the
linkages between transportation and air quality and has encouraged broader involvement in transportation planning by stakeholders. We support and applaud
these improvements.
Nevertheless, after nearly fifteen years of experience, we believe the transportation conformity process is still not working as effectively as it could. Misalignments and inconsistencies in planning horizons, planning updates, assumptions and
modeling tools result in unnecessary complexity and confusion.
The impact on transportation programs is substantial. Since 1999, 74 nonattainment or maintenance areas have had a conformity lapse, putting billions of dollars
for transportation projects on hold. In over half of these areas, the reason for the
lapse was simply confusion about deadlines. Process inefficiencies impose an additional administrative burden with sizable opportunity costsscarce staff and resources are diverted from addressing the wide array of existing and emerging transportation policy challenges, including for example, safety, security and broader environmental and community objectives.
AASHTO has identified several procedural improvements to the conformity processimprovements which would harmonize the transportation and air quality planning process and reinforce the role of conformity to ensure consistency with SIPs.
The goal is simply to strengthen the connection between transportation and air
quality planning by making common sense improvements to the conformity process
that will benefit transportation and air quality agencies alike.
ALIGN PLANNING HORIZONS

Metropolitan transportation plans are required to have a minimum of a 20-year

planning horizon. State Implementation Plans (SIPs) are for a period that extends
to the attainment date with the latest being 2021. The vast majority of MPOs have
attainment dates of 2013 or earlier. Transportation agencies need to demonstrate
conformity to the last year of the plan which means that on-road mobile sources are
constrained to the motor vehicle emissions budget from the attainment year to the
last year of the transportation plan unless SIPs specifically establish budgets for
years after the attainment date yet within the transportation planning horizon.
Also, there can be no credit taken for technology or other measures that may be
available during the out-years unless those measures have a regulation in place and
implementation is assured.
The mismatch in the timeframes for transportation and air quality plans has
placed an undue burden on the on-road mobile sector where there are very few
measures remaining that can be implemented that will yield significant emissions
reductions. This is especially true as vehicles continue to get cleaner and federal
controls on vehicles are phased in. This has caused problems for transportation
agencies in making conformity determinations, which is a criterion for receiving
Federal highway and transit funding.
AASHTOs Policy Recommendation: Require conformity determination on
the first ten years of the transportation plan or to the attainment date,
whichever is the longer time period. For informational purposes, regional emissions analysis would be done on the remaining years of the transportation plan.

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To address this issue we believe that the following provisions of H.R.3, The Transportation Equity Act: A Legacy for Users could be improved.
Time Horizon for Conformity Determinations in Nonattainment Areas (Section 1824
(c))
H.R. 3 continues the requirement that the conformity finding be based on the
final year (at least 20 years in the future) of the transportation plan. However, at
the election of the MPO and an air pollution control agency . . ., the conformity finding may be based on the latest of: (1) the 10th year of the plan; (2) the attainment
date of the SIP; or (3) the year after the completion date of a regionally significant
project, if approval is required before subsequent determination. Regional emission
analysis must be done for the remaining years of the Plan.
While we agree with the provision generally, we request two changes that would
improve the efficiency and effectiveness of the conformity process.
We support the three options for the end date of the regional emissions analysis,
especially given the fact that many MPOs are now developing plans that go for 25
or even 30 years. However, we request that the regional emissions analysis for the
out-years be conducted for informational purposes only, if at all. The value of estimating emissions out 20 years or more is marginal at best given the models and
tools in place and the margins of error inherent in such estimates. If this analysis
is done for informational purposes only, it will give the MPO and applicable air
quality agency a rough sense of whether there may be an issue in the future, but
would not carry any new real or perceived policy or regulatory burdens.
The second change we request is that the MPO be required to consult with the
applicable air quality agency on the end date of the analysis, but that the concurrence of such agency not be required. U.S. DOT (FHWA and FTA) is responsible for
making the final conformity determinations and the MPOs are the regional entities
charged with responsibility for developing the initial determinations, through a prescribed interagency consultation process. This process is established in MPO regions
and works. We suggest this is the process that should be used to determine the horizon for the conformity determination. With this change, H.R. 3 would not confer
new authorities on air quality agencies and, in effect, provide air quality agencies
veto power in the conformity process.
PROVIDE MORE PREDICTABLE AND COORDINATED PLANNING UPDATE CYCLES AND
CONSISTENT PLANNING ASSUMPTIONS.

Transportation plans must be updated not less frequently than every three years.
Transportation Improvement Programs (TIPs) must be updated every two years. In
addition, there are various SIP-related triggers in the transportation conformity rule
that require plan and TIP updates within 18 months of various SIP actions. State
Implementation Plans (SIPs) do not have a regular update cycle and are not updated frequently.
This has created a situation where transportation plans are updated regularly
while SIPs are updated on a discretionary and sporadic basis, resulting in overlapping plan cycles, public confusion, less time spent on other important planning tasks
and a continuous conformity process in many areas. In addition, the unpredictable
nature of the 18-month SIP triggers for conformity redeterminations has caused uncertainty in the transportation planning and TIP development processes. Because
transportation plans, TIPs and SIPs must use the latest planning assumptions each
time they are updated; the assumptions used in SIPs tend to be older thanand
inconsistent withthose in transportation plans and TIPs. AASHTO believes that
the conformity process must provide a more predictable and coordinated transportation and air quality plan update cycle along with consistent planning assumptions.
AASHTOs Policy Recommendation: Require update of metropolitan
transportation plans and TIPs at least every five years with transportation
conformity determinations required after each update, unless more frequent updates of the TIP are needed.
To address this issue we support the following provision of H.R.3, The Transportation Equity Act: A Legacy for Users but believe it could be improved .
TIP Update Cycle (Section 6001)
We support H.R. 3s provision that provides for a four year update of the TIP but
believe that it could be improved by extending the update cycle to five years.

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REQUIRE CONFORMITY ONLY FOR NONATTAINMENT AND MAINTENANCE AREAS

Transportation conformity determinations must be undertaken for all nonattainment and maintenance areas. Currently, if an area has completed its 20-year maintenance period prior to the last year of transportation plan, the area still must meet
conformity requirements all the way to the last year of the transportation plan
the horizon year (e.g., end of 20-year maintenance period is 2006 and the transportation plan horizon is 2025). Because some areas are approaching the end of their
20-year maintenance periods, this situation is beginning to surface. Similarly, when
Maintenance Plans reach their 8-year update point, the new SIP budget need only
be for 10 years out, rather than the 20+ years required for transportation plans.
AASHTOs Policy Recommendation: Clarify that conformity determinations are required only for that time period when an area is classified as
nonattainment or maintenance, and analysis must be done only to the end
of the maintenance period.
To address this issue we believe that the following provisions of H.R.3, The Transportation Equity Act: A Legacy for Users could be improved.
Conformity to the End of the Maintenance Period (CAA section 175(A)(b)
H.R. 3 section 1824(c) would limit conformity to the end of the maintenance period required under CAA section 175(A)(b), provided the MPO and air quality agency agree. This would, as noted above, confer new authorities to the air quality agencies, which would be inconsistent with current practice and with the extensive consultation process currently in place in each nonattainment and maintenance area.
We believe that conformity should be limited to the end of the maintenance period,
which is at a minimum 10 years after an area attains federal standards.
SYNCHRONIZE SANCTION CLOCKS

In the event of a conformity lapse, there are immediate consequences in that only
certain types of transportation projects may proceed until the lapse is resolved. In
contrast, in the event of a SIP failure, there is an 18-month period in which to correct the SIP failure prior to the imposition of sanctions. In essence, a conformity
lapse functions as an immediate sanction with no time permitted to correct situations that might have led to the lapse.
AASHTOs Policy Recommendation: Align the conformity lapse with same
18-month time clock for imposition of sanctions for SIP failures in order to
provide a similar amount of time to correct deficiencies in transportation
plans and TIPs.
To address this issue we support the following provisions of H.R.3, The Transportation Equity Act: A Legacy for Users.
Conformity Lapse (Section 1824(e)
We support the H.R. 3 language on conformity lapse, which would allow 12
months to correct a Plan/TIP deficiency. While still not totally consistent with the
SIP process, this provision would make the conformity process more consistent with
the State Implementation Plan (SIP) process for air quality planning which allows
18 months to correct deficiencies prior to the applicability of any sanctions.
TRANSITION TO NEW STANDARDS

Transition to New Air Quality Standards Before New Budgets are Available
While H.R. 3 does not address this issue, we support adding language that would
allow areas that are transitioning into new air quality standards to use existing
motor vehicle budgets for the same pollutant or other emission tests to demonstrate
conformity before new budgets are available. There are numerous inconsistencies in
the new nonattainment boundaries for ozone, for example, where the boundaries are
generally not the same under the new 8-hour standard as they were under the 1hour standard. H.R. 3 should provide MPOs the option to either use the existing 1hour budget or other emission tests (new interim emissions tests are included in the
recently updated conformity rule). This would help address the boundary inconsistencies in the way that makes most sense in each nonattainment or maintenance
area. The established interagency consultation process would be used to determine
which tests or budget should be used.
CONCLUSION

We are encouraged by the proposed changes in the transportation conformity process and request the changes discussed above. AASHTO appreciates the opportunity

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to work with you and your subcommittee, and looks forward to continuing to explore
approaches with you for improving transportation and air quality planning through
the conformity process.

Mr. HALL. Thank you, Mr. Njord, and we appreciate you, and appreciate all of you that have taken your time to come and prepare
for this, and travel here, and give testimony, and travel back, and
to keep with your schedule. I will ask you the first question, if it
is okay, Mr. Nottingham, we will start with Mr. Njord.
In your testimony, you state that regional emissions analysis for
the out years be conducted for informational purposes only, if at
all. I think we all recognize that predictions are fraught with uncertainties. However, dont you agree that such an analysis, even
with incomplete models or margins of error, provide some basis for
the policymakers and transportation planners to maybe initiate
some changes for future regional transportation, and for air quality
planning? Wouldnt that be some help?
Mr. NJORD. I believe that the out years, there is some value in
doing that analysis just for a check. But for conformity, it doesnt
make sense doing conformity out 20 to 30 years, out when it is like
shooting an arrow. It is only accurate so far. If you are trying to
shoot an arrow 1,000 yards, you are not going to hit your target,
but under 100 yards, you can certainly hit the target. It is the accuracy of the information that I would be concerned with there.
Mr. HALL. All right. Mr. Strickland, do you have any questions
for this witness.
Mr. STRICKLAND. No, sir. Thank you.
Mr. HALL. We are trying to accommodate your schedule, and Mr.
Shimkus. Or good doctor, do you have any questions?
Mr. SHIMKUS. For Mr. Njord, Chairman, just theI would like
toI know you addressed the issues of the out years, and Mr.
Njord, why do you haveand excuse me if this was asked, I was
talking to Dr. Burgess, why do you have objections to the requirements that MPOs and air quality agencies must agree to the final
conformity determinations?
Mr. NJORD. Thank you for that question. We have a great relationship with our air quality agencies on the State level, and work
with them on a continuous basis to implement our SIPs and our
transportation improvement programs. If, in fact, a concurrence is
required, it empowers the air quality agencies more than they are
today. Now, if we want to create an additional check-off, then that
is the way to do it. What we were hoping to do was to be able to
streamline this process, so that we can get through conformity
quickly. I dont think we disagree with them. It is just a matter of
authority.
Mr. SHIMKUS. Yeah, I thinkI guess our confusion and mine is
that, obviously, the current practice almost bespeaks that this is already occurring, and the question is do you codify it in practice,
and you would disagree with that?
Mr. NJORD. We would hope to streamline, rather than to codify
a process that already works. Why change it? It works now.
Mr. SHIMKUS. Okay. That is all I have, Mr. Chairman.
Mr. HALL. All right. I reclaim my time. Doctor, do you have questions for Mr. Njord? Thank you. I reclaim my time. I think I have
312 or 4 minutes left.

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Mr. Nottingham, what are the six areas that are currently in a
conformity lapse? You discussed a mismatch of transportation and
air planning in your testimony, and the fact that the assumptions
underlying transportation plan emissions and emissions budgets
might be different.
Mr. NOTTINGHAM. Chairman Hall
Mr. HALL. Do you have examples of this?
Mr. NOTTINGHAM. Oh, yes, sir. If the question isI am sorry, I
misheard the question. We currently have, as of today, six areas in
the country that are actually in a lapse. I can give you where they
are if you would like.
Mr. HALL. If you would.
Mr. NOTTINGHAM. Certainly, sir, and I can give you a little bit
of information about them. In San Bernardino County, California,
inspecifically in the Searles Valley portionbeginning back in
April 22, 1999, the lapse began. They are expected to be out of
their lapse this coming June 15, and the reasonand let me know
if you want me to skip over the reasons. I can just give you
Mr. HALL. Please continue.
Mr. NOTTINGHAM. Yes, sir.
After San Bernardino County, it is Billings, Montana; Lake
Tahoe, in the California/Nevada border region; Dover and Kent
County, Delaware; Sacramento, California; and Reno, Nevada.
Mr. HALL. Are any of these examples in conformity lapse, what
they call conformity lapse?
Mr. NOTTINGHAM. Yes, sir. All of them are.
Mr. HALL. All right. Will H.R. 3 help alleviate this problem by
synchronizing studies, or in any other manner?
Mr. NOTTINGHAM. Yes, sir. They would. Speaking in general,
many of the lapses we see, both currently and in general, are really, as Director Njord touched on, almost administrative and paperwork lapses, due to the fact that we dont have the right synchronization right now. We have got air quality plans with certain horizons, typically 3 years now, and transportation plans with 20 and
25 year horizons. Therefore, we have to take resources away from
State DOT and MPO real highway and transit planning to constantly be updating these plans. Sometimes, people are working on
the current 3 year air plan and the next one at the same time. So
certainly H.R. 3 would go a long way. We actually do think H.R.
3, supplemented with a couple of the administrations additional
proposals, would even do a better job.
Mr. HALL. Well, I thank you for that, and you know, we hit deadlines from time to time. Can you give any examples where, for example, an area fell into what they call conformity lapse because it
couldnt finish a conformity determination in time, even though it
didnt exceed its emissions budget?
Mr. NOTTINGHAM. Yes, sir, Mr. Chairman. In Billings, Montana,
also in the Lake Tahoe region, and in the Dover and Kent County,
Delaware regions. Those are all currently 3 examples where the
conformity lapsed because deadlines were missed. So the answer to
your question is those 3 examples currently, and many more in
past years.
Mr. HALL. All right. My time is almost up. I recognize the gentleman from Virginia.

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Mr. BOUCHER. Thank you very much, Mr. Chairman, and while
I didnt make an oral opening statement, I had in my written, prepared statement, which is now part of the record, thanks to you,
and to Chairman Barton, and to your outstanding staffs for their
bipartisan work with us, in structuring the language that is in
H.R. 3, which is the subject of todays hearing. We very much appreciate your cooperation and the good work on both sides, which
has led to the construction of that language.
Let me ask our witnesses if the administration supports that language, the language that is in H.R. 3, which would address the
lapse problem. Mr. Nottingham.
Mr. NOTTINGHAM. Thank you, Mr. Boucher. Wethe administrationdoes support many of H.R. 3s conformity proposals. We think
they are on track and going after the same problem we are trying
to address, which is to increase the synchronization you have heard
about today, try to integrate more closely the transportation and
the air quality planning processes. I will say that we do share Mr.
Njord and AASHTOs, and many other stakeholders concerns that
putting into code, by codifying almost a veto, really a veto role for
the air quality agencies in transportation conformity determination
requirements, we think is going a little too far. We understand it
is well intentioned, but in reality, all the States DOT heads and
air quality heads report to the same elected official, the Governor
in most cases, almost all cases, and they work pretty well together.
We are worried that having an extra item in code may just create
some unforeseen problems.
As far asmaybe if I could pick one other area that
Mr. BOUCHER. Well, I understand you are offering some suggestions for modifications of these provisions.
Mr. NOTTINGHAM. Yes, sir.
Mr. BOUCHER. But in the main, you support whatthe direction
we have taken
Mr. NOTTINGHAM. Yes, sir. For example, moving from 3 to 4
years on the conformity and planning horizons is the right direction. We would ask you to consider taking that an extra year to 5,
but you are on the right track with H.R. 3.
Mr. BOUCHER. All right. That is good. Mr. Holmstead, do you
agree on thewith the comments Mr. Nottingham has made?
Mr. HOLMSTEAD. Thankfully, yes. I do. We are on the same page
on this one. I think we support, generally, the direction that H.R.
3 is moving in. Thisparticularly this issue of the 4 versus 5
years. One of our concerns has just been that these plans become
more meaningful and better if they dont happen so often.
Mr. BOUCHER. But in the main, you do support the trend that
is reflected in these changes?
Mr. HOLMSTEAD. Yes.
Mr. BOUCHER. All right. And just to highlight the need for these
changes, to talk a little bit about what is happening today. I understand that there are six areas that are currently in lapse. Describe,
if you will, what is happening in these six areas. Are Federal funds
for projects being restricted as a consequence of the lapse, and are
these lapses primarily caused by the lack of synchronization in the
planning cycles between State implementation plans and transpor-

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tation implementation plans that you referred to earlier? Who
would like to answer? Mr. Holmstead?
Mr. HOLMSTEAD. Well, I have to confess that I am not familiar
with the details in each of these
Mr. BOUCHER. I think Mr. Nottingham probably is the proper
person to answer. Mr. Nottingham.
Mr. NOTTINGHAM. Sure. Thank you, Mr. Boucher. In general, the
current six areas that are lapsing are not experiencing big problems with project delays. And that, I think, speaks well to the regime generally as it has worked, which is when you do lapse, you
can still continue projects that have begun and are already underway in a certain phase. For example, if you are in the right-of-way
phase, buying real estate for a project, you can keep going with
right-of-way, but if you are in lapse, you cant go to that next
phase, which typically would be actual construction, or perhaps
preliminary engineering.
And most of these cases are shorter term. I will say there is a
little bit of a hidden cost often, where it relates a lot to construction seasons. I know from the part of southwest Virginia you are
in, sir, you understand very well that there are some times of the
year where it just isnt really possible to be laying asphalt and
building roads. Chairman Halls area of the world is a little more
fortunate. They can pretty much build almost all year round. If you
do have even a 1 or 2 or 3 or 4 month lapse, and it is the wrong
time of year, it can push you into another construction season. On
paper, that looks like not a big deal. But, when you realize that
every year we face enormous inflation costs, and you look across
the country, it is kind of a quiet, but very real cost concern to us.
Mr. BOUCHER. And are the reasons for the lapses in these six
areas the lack of synchronization between the SIP and the TIP that
you have described earlier, or is it a basic conflict in policy between
the transportation implementation plan and the State implementation plan?
Mr. NOTTINGHAM. Sir, I would say largely the former. And specifically, in the first three I mentioned, in San Bernardino and Billings and Lake Tahoe.
Mr. BOUCHER. Would you say that that condition is characteristic
of lapses when they normally occur around the Nation, that it is
usually because of a lack of synchronization in schedules?
Mr. NOTTINGHAM. If I could, let me just confer with staff, to
make sure I get that right. I am advised, sir, that in most of the
cases, it is. It really relates to missing the 3 year time cycle deadline. In transportation circles, 3 years is actually a pretty short
window, when it takes, typically, unfortunatelyand we are working with some other committees on some of these problemsbut
often, 4 or 5 years to get through the environmental process in a
project, 3 years isand then working on the next 3 year cycles is
a very short window.
Mr. BOUCHER. Okay. Mr. Holmstead, in the time I have remaining, let me ask you about your recommendation that 5 years be the
date for conformity updates, rather than the 3 years, which is current law. Why choose 5 years? What is the magic of that number?
Do you have any studies or any empirical data showing that 5

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years is more appropriate than 3, or is it simply a matter of saving
work and saving money?
Mr. HOLMSTEAD. Well, it is based on the judgment of people from
both EPA and DOT, and State and local officials who work on these
plans, and one of the concerns, as I think you know, is the 3 year
cycle comes around so quick that people are just doing the paperwork to comply with the date, and I think our judgment was that
if you expand that to 5 years, they become more meaningful exercises, and you get better modeling, you get better analysis. That
could be said of 4 years, I suppose, but 5 years, actually, better
aligns with sort of the current transportation planning process, and
that is why we support the 5 year process, as opposed to just 4.
Mr. BOUCHER. Did you have any analysis of the consequence, in
terms of emissions, if we go from 3 years to 5 years, as you recommend?
Mr. HOLMSTEAD. I wouldnt expect to see any emission consequences. I cant tell you that we have analysis, but it would be,
I think, difficult to quantify any difference between 4 and 5.
Mr. BOUCHER. Well, in any event, we have settled on 4, in the
draft that is pending at the present time. You dont have a problem
with that, I suppose.
Mr. HOLMSTEAD. We would rather have 4 than 3.
Mr. BOUCHER. Okay. I could anticipate that answer. Thank you
very much, Mr. Holmstead and Mr. Nottingham. Did you want to
comment, Mr. Nottingham?
Mr. NOTTINGHAM. If it would be okay. Just very briefly, sir, because your question touches on a very important point, the 5 year
difference compared with 3 years. In answer to your second question, if I understood it correctly, there would not be any implications on any actual conformity determinations by going from 3 to
5. In the event that new projects were added or new data came in,
the conformity process would automatically be triggered regardless
of the 3 or 5 or 4 year window. So there is a safeguard there. A
point I think is also worth making is that the general conformity
timeline that covers pretty much the whole world, except the highway and transit sector, is 5 years. So the fallback time horizon for
conformity universally is 5 years. Specifically to highways and
transit, it is 3. And, if you look, we have got, I think, by our count,
about 7 different timeframes we deal with in planning and air
quality conformity work. Going to 5 years would greatly harmonize
all of those.
Mr. BOUCHER. Thank you both. Thank you, Mr. Chairman.
Mr. HALL. Well, thank you. And thank you, gentlemen. The
Chair recognizes Mr. Shimkus.
Mr. SHIMKUS. Thank you, Mr. Chairman. And I was going to recognize Bob Meyers, whoa former committee staffer, but he snuck
out, so I dont know where he went to. But while I have some time,
I may be getting off the subject, but I am wondering, two areas
which we are going to be addressing in an energy bill. One is tryingin the last bill, H.R. 3, there was a move to address the balkanization of fuels, based upon local area SIPs and the mixthe
multitude of mixtures of fuels in a very short distance. If we do
that, does this affect this process at all?

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Mr. HOLMSTEAD. It really is a completely separate issue. Iwe
recognize that the balkanization of fuels issue is an important one
to consider. As you know, Mr. Shimkus, we have tried to work on
some ideas to address that, but I dont really think it has an impact one way or another on the conformity process.
Mr. SHIMKUS. What about thethere is another provision in the
bill that deals withand my crack staffers wife is in the process
of giving birth to a baby right now, so he is not here to give me
the proper terminology, but inacrossthere is regions in the
country where they are in nonattainment primarily because of activities across State lines. In my area, because of St. Louis, and
that is not uncommon, and soand part of the issues was an acknowledgement of that, an acknowledgment of the improvements
made locally, and not to beand not a disincentive based upon
what is not controllable by the State. Has that evolved in any part
of this debate, either?
Mr. HOLMSTEAD. We refer to that as the transport issue.
Mr. SHIMKUS. That is right.
Mr. HOLMSTEAD. As pollution as transported from one region
Mr. SHIMKUS. Right.
Mr. HOLMSTEAD. [continuing] to another. Again, I think that that
is largely unrelated to this issue of transportation conformity. One
of the concerns that I think people have legitimately had is if you
are in a small area with very little traffic, you may be in nonattainment primarily because of emissions from another area, and the
question is well, gee, does it really make any sense for us to do all
this transportation planning, when transportation sources are not
a bignot a significant issue in our area. We have, by regulation,
tried to address that already by allowing an area to show that
transportation is sort of a de minimis issue, and not have to do the
transportation conformity in those situations. And whether that is
something we can better do through legislation, I think, we would
be open to talking about, but we do try to accommodate that within
our existing regulatory structure.
Mr. SHIMKUS. And just to stay on this type of direction, if we
make the assumption, and I am justthat H.R. 3 of the last Congress will be pretty much the base of the national energy policy.
It may not be. Is there anything in there that would affect this debate on this bill that we are referring to, I guess, which is H.R. 3?
Mr. HOLMSTEAD. I dont think so, but I have to
Mr. SHIMKUS. It might be good to know, because then, we would
be going crossways.
Mr. HOLMSTEAD. I think the answer to that is no, but let me just
suggest that if wethat we go back and think as to whether there
is any such issue, and if so, we will certainly
Mr. SHIMKUS. Yeah. Raise it with my
Mr. HOLMSTEAD. [continuing] advise the
Mr. SHIMKUS. [continuing] staffand my staff would be happy to
reconcile any differences.
Mr. HOLMSTEAD. Okay.
Mr. BOUCHER. Thank you. Mr. Chairman, I yield back.
Mr. HALL. Thank you. The Chair recognizes the gentleman from
California, Mr. Waxman, for 5 minutes.
Mr. WAXMAN. Thank you, Mr. Chairman, and Mr. Holmstead.

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Good to see you again, I suppose. Except I do want to take this
opportunity to tell you how deeply disappointed I am about the
communications between your office and members of this body, because it appears that they have entirely broken down. We have
made many requests for information, and I dont think you have
been responsive. The last response I received from you to an information request arrived on November 17, 2004. That request had
been outstanding for almost 5 months. Your response was 4 pages
long. It arrived on the morning of November 17, just minutes before the EPA Deputy Administrator was scheduled to testify before
the committee in which I am the Ranking Member. Among other
incidents, you previously failed to respond to a set of questions for
the hearing record on clean air issues for 8 months after I sent you
the questions, and I have raised the issue before with you at hearings like this. Back in May 2002, and again in July 2003, but I
must tell you, I dont see any improvement.
Most recently, you failed to respond to questions for the hearing
record from a November 2004 hearing. That was last November. It
is now March. Today, again, just minutes before this hearing, I received a partial response to the request, with a promise to provide
the remaining responses later. I see a clear pattern, and I consider
it unacceptable.
Mr. Holmstead, do you dispute Congress authority to conduct
oversight of Federal agency activities?
Mr. HOLMSTEAD. No, I certainly do not. We just are obviously
trying to take care of all of the obligations that you have given us,
and so, we do our best to try to make sure that we respond to requests, while at the same time, we are meeting statutory and judicial deadlines on other things. But I can tell you there are people
who put in an
Mr. WAXMAN. These are information requests
Mr. HOLMSTEAD. [continuing] enormous amount of time.
Mr. WAXMAN. [continuing] Mr. Holmstead, that address serious
matters. For example, the questions I and my colleagues sent in
November 2004 concern EPAs pending rule to regulate mercury
emissions from power plants, and many of the same issues we raise
were flagged by the EPA Inspector General in a recent report. The
Inspector General strongly criticized EPA for failing to conduct an
unbiased technical analysis needed to support the rule. We had inquired in detail about EPAs plans for such an analysis. Do you disagree that these are important issues?
Mr. HOLMSTEAD. No, these are certainly important issues. It
Mr. WAXMAN. In your testimony today, you made a number of
valuable points about the importance of transportation conformity
requirements to clean air and to public health, but I feel you undermine your credibility by repeatedly failing to respond in a complete and timely manner to basic oversight inquiries.
I would like to discuss one other matter with you today in the
short time I have left. Another key piece of the clean air agenda
is the implementation of the new national, health-based standards
for fine particulate matter. Cities and towns across the country currently have unsafe air quality, due to particulate pollution. Fine
particles aggravate heart and lung diseases, and for tens of thousands of Americans, cause premature death. The administration

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should be doing all it can to move forward on this problem. Specifically, EPA must issue the fine particulate matter implementation
rule, which gives the States guidance in developing their cleanup
plans. But instead, we have seen foot-dragging and delay.
Former Administrator Levitt testified before the Senate last
April that EPA intended to propose the implementation rule in
June 2004 and finalize it in late 2004, or early 2005. EPA sent the
proposal over to OMB formally last October. OMB has now exceeded its review period, but still has not released the rule. When is
the administration going to issue this important rule?
Mr. HOLMSTEAD. I believe it will be fairly soon. We are trying to
coordinate a number of important rules, including rules that will
do more than this country has ever done to reduce fine particle pollution, among those, the non-road diesel rule, among those, the
clean air interstate rule, both of which will achieve greater emissions reductions than anything any administration has ever done.
We are obviously working to try to
Mr. WAXMAN. Well, you dontyou are not going to do it until
the rule is promulgated, so in this particular area
Mr. HOLMSTEAD. No, no. We actually regulate directly, so we
the implementation rule you refer to is obviously important, but we
want to coordinate that with the other rules that are actually
achieving immediate reductions.
Mr. WAXMAN. But this rule wont go into effect until OMB signs
off on it. Isnt that correct?
Mr. HOLMSTEAD. The process by which States take action to improve their air quality is not dependent on that rule.
Mr. WAXMAN. No, but this is a guidance for the States.
Mr. HOLMSTEAD. This is a guidance for the States
Mr. WAXMAN. You said soon.
Mr. HOLMSTEAD. [continuing] and we are trying to
Mr. WAXMAN. Soon means what?
Mr. HOLMSTEAD. I would expect that
Mr. WAXMAN. Weeks?
Mr. HOLMSTEAD. [continuing] we would be in a position to propose the rule within the next month or 2.
Mr. WAXMAN. Okay. Thank you, Mr. Chairman. I see my time is
up.
Mr. HALL. The Chair recognizes Mr. Burgess, the gentleman
from Texas.
Mr. BURGESS. Thank you, Mr. Chairman, and I apologize for
being out of the room for part of the time. Of course, the Chairman
and I represent the same area of north Texas, which is under
somewhat are we calling it now, nonconformity issues, and I
have just had a lot of concerns that highway money would be diverted from the north Texas area under the nonconformity rules.
Our biggest problems in the Denton County area that I serve are
our biggest problems are, in fact, roads that were never meant to
handle the traffic loads that they are handling, and the resultant
congestion is responsible for a significant amount of air quality
problems, so what are we doing to make certain that while we are
trying to enforce compliance with conformity, that we are not actually making the problem worse? If we divert highway funds from
our area to west Texas, we are notwe may keep the States rate

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of return, but we are really doing little to alleviate the air quality
issues.
Mr. NOTTINGHAM. Dr. Burgess, if I may, you raise a very important question. It is one I wrestled with as the Virginia Commissioner of Transportation, where we had several fast growing suburban or urbanized areas, not too unlike north Texas in the Dallas
region, that were desperate for some new capacity, and for some
congestion relief, and other improvements, and were constantly
bumping up into the conformity ceiling and headroom, and as a
State Commissioner, it is very tempting to just put your extra resources elsewhere in the Commonwealth or the State, where you
dont need to worry about that. And that is great for those regions,
but often, they are not the ones with the traffic, or the severe traffic problems. They all have needs, butfor sure, but I think some
of the proposals we have talked about today that are in H.R. 3, and
also, some additional ones in the administrations SAFE-TEA proposal, bywould improve the synchronization, as we have talked
about, better align the air conformity planning process, and the
transportation planning process.
One of the problems we have today, sir, is technology, and this
is a good part of the problem, technology, cleaner fuels, some of the
good work that the EPA has done over the years, good work that
our industry has done, the auto industry and others. The transportation piece of the clean air problem is getting much better very
fast, and has over the last 35 plus years, and so, when we look out
at a 20-year transportation plan, and compare that to a 3-year air
quality plan, in a fast growing region, and have to guesstimate
what the technology and the actual air conditions might be, mind
you, the trends are positive now, it becomes very speculative. And
to put ato raise the specter for a region, that they may have to
pause their major new projects while they recalculate estimates,
rerun projections, it is a very tough nut to crack, and I dont know
if I have answered your question, but I think that H.R. 3 is on the
right track to meet the concern that you have raised.
Mr. BURGESS. Is there also any attention paid to the transport
of, say, ground level ozone from other areas, and in our north
Texas area, we do get some transport of ground level ozone from
the Houston Gulf Coast area, and while those numbers may not be
very high, in the range of 15 to 35 parts per billion, if we are only
out of compliance by 1 or 2 parts per billion, obviously, that is a
significantthat transport ground level of ozone transport is a significant contribution to us being out of compliance.
Mr. HOLMSTEAD. That is an issue that we are well acquainted
with, and actually, have tried to address that in some regulatory
changes, including a change that was overturned by the courts
when we tried to accommodate that so we could better synchronize
the schedules. I know there has been an effort to try to recodify
that, and we would support that kind of an effort. The other thing
I would say, though, is to some extent, in Texas, you are fortunate
because the transport comes from the same State, and so what we
are seeing in the State of Texas is a concentrated effort on the air
quality side to try to make sure that the problems in the north
Texas area, and their relationship with the Houston area, really
are all considered together, and we think the State of Texas is ac-

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tually moving a long way in the right direction to address both of
those.
Mr. BURGESS. I would just make the point that we do receive
some contribution from the burning of the sugar cane fields in
Mexico, as well as occasionally, we get the brown muck moving in
from the Mississippi Valley.
Thank you, Mr. Chairman. I will yield back.
Mr. HALL. Thank you. The Chair recognizes the gentleman from
Texas, Mr. Green.
Mr. GREEN. Thank you, Mr. Chairman, and all due respect to my
doctor colleague, we will deny we send anything up to the DallasFort Worth area from Houston. Butagain I want to welcome our
Administrator. I have some concerns about the transportation conformity process. In the last session of Congress, Congressman
Brady and I from Houston, or the Houston area, introduced legislation that would allow for grandfathered projects to go forward
under a conformity lapse, and the concern that we have is that we
have these projects, and yet, for some reason, they arewe are in
noncompliance, and those projects stop. I know that is the teeth
that EPA has, but it sure seems like economic waste in particularly
urban areas, or anywhere where you have projects that are underway, and they get partially built, and then they are halted because
of Federal law.
Having said that, I want to give you an opportunity to defend the
necessity of the transportation conformity process as a whole, and
is there a way we could split the difference if something is going
on now that may actually help us with our both traffic, and ultimately, our air problems? Is there a way we can have the best of
both worlds, both the carrot, but also the stick, to be able to finish
some projects?
Mr. NOTTINGHAM. Thank you, Mr. Green, if I could. I think the
transportation community welcomes a little bit of a stick. And all
of the State DOTs have numerous environmental experts now. The
transportation sector as a wholesort of an old sayingis not your
fathers Oldsmobile. It is a whole new world out there, and so, the
fact that the Clean Air Act is important, and that the transportation community does embrace it, that is not a problem. The fact
that there are very real sticks, to use your word, is not a problem.
I will say, we have talked earlier today about the need to better
align and coordinate some of these planning horizons, because too
often, the stick gets triggered really unnecessarily because there is
a disconnect, not because there a wrongdoer in a State agency trying to wrong the environment. It is just the system and the processthe time it takes to update a transportation plan and the associated conformity determination every 3 years, to remedy, rectify
that, and to marry it up with a 20 or 25 year transportation plan.
And so, doing some of the things that H.R. 3 does, combined with
maybe a couple other things that our administration bill does, and
that the Senate bill does, really would help that matter. But we are
notI am nothere to say do away with some of the strong requirements, because they are there for a good reason. The transportation community welcomes them, by and large, and itthe
grandfather provisionis an interesting one, because places like
Atlanta, and other places, have really had to wrestle over the years

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with how to keep major projects, that they have invested millions
and millions of dollars on, moving while they sort out
Mr. GREEN. And again, knowing Atlanta, but knowing the Houston area, we have some of the same problems, because again, we
aresome of those projects actually would help our quality, if we
could get them done. Recently, I had a real productive meeting
with Jeff Clark from your EPAs air office, where we learned that
EPA activities are coming soon, under the current law, to reduce
industrial air toxic levels. Could your office provide any estimates
on the future reductions of air toxics, both from the mobile sources
that we are talking about here, that the Houston area may see
under current law, because our concern, and there was a series of
articles a few weeks ago concerning the toxins, but they were mainly fromtoxics, but they were talking about stationary sources, our
industry. And under provisions of our Highway Bill last year, do
you see any weakening in pollution control from mobile sources in
general under this legislation?
Mr. HOLMSTEAD. Really, there are two different questions you
ask.
Mr. GREEN. Yes.
Mr. HOLMSTEAD. One is about the toxics from stationary sources,
the toxics fromand then, the second one is the toxics from mobile
sources.
Mr. GREEN. Well, then, since we are dealing with highway, this
is a mobile source problem, I assume.
Mr. HOLMSTEAD. Right. Right. I dont think any of the provisions
that are in your bill would have a significant impact on what we
call mobile source air toxics one way or another. With respect to
the overall reduction of air toxics emissions, we are now nearing
the end of the first stage of the process of controlling those pollutants. I know that nationwide, our estimates are that that has reduced air toxics by about 1.7 million tons a year. I dont know exactly what that means for the Houston area, but all of those stationary sources, just in the last little while, have been required, or
will soon be required, to make significant reduction on air toxics
emissions, and the city and its residents will soon see the benefit
of those.
Mr. GREEN. Okay. And I know on a separate issue, Mr. Chairman, one of our concerns is, at least in the Houston area, is that
it seems like some of the toxins from the upsets or the accidents
are actually so much more than the permit, and somehow, I know,
working with my local officials, my State, and hopefully, EPA in
their regional office, will be able to see what we can do to handle
that.
Thank you, Mr. Chairman.
Mr. HALL. Thank you. The Chair notes the presence of the Chairman of Energy and Commerce, the gentleman from Texas, Mr. Barton, recognized for as much time as he consumes.
Chairman BARTON. Well, thank you, Mr. Chairman. I wont take
very much time. I want to compliment you for holding this hearing,
and I want to thank our two witnesses from the EPA and the Department of Transportation for being here. What we are trying to
do is hold a hearing on a piece of legislation that was in last years
highway, that we worked with on this committee in a bipartisan

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basis. It is our committees jurisdiction, but we have acknowledged
to the Transportation Committee that we will put it in, that we did
put it in last years highway bill, and we are going to put it in this
years highway, unless theres some controversy that erupts in this
hearing.
It is just common sense. It conforms the transportation plan, the
highway plan, planning horizon, with the environmental horizon of
the EPA. It is not changing any environmental law, or anything
like that. It is simply allowing communities that have ongoing
projects not to have those highway projects automatically stopped,
because there is a lapse or a conformity difficulty between the two
statutes. So we worked in a bipartisan basis to put this proposal
together. It was in last years highway bill. It did pass the House
of Representatives. Our intention is, if this hearing goes well, to
put it in this years highway bill, and from what little I have participated in the hearing, it looks like we are having a good hearing.
So I want to thank our witnesses, and I would thank you, Mr.
Chairman, for holding this hearing.
With that, I would yield back.
Mr. HALL. I thank the Chairman. The Chair recognizes Ms. Solis,
the gentlelady from California, for 5 minutes.
Ms. SOLIS. Thank you, Mr. Chairman, and I also want to recognize that you are having a hearing on this very important issue,
and want to thank you and our Ranking Member also for that, and
welcome the guests here.
I represent a district that is heavily impacted by various high
levels of smog, carbon monoxide, PM2.5, PM10 standards, leaving, in
many cases, the air very unbreathable. We have population there
that is largely Hispanic, about 70 percent, and more than twice as
many of our children there are affected by asthma, high rates of
asthma. We have very, very large freeways, congestion, and in
some areas, evenin my district, we even have some rock quarries
where there is a high level of dust particulate matter that consumes most of the area.
I have been working for the last few years on environmental justice issues, and wanted to ask you if you could answer some questions for me, Mr. Holmstead. Can you tell me what impact on underserved communities a planning delay, under both the House
language and the Senate, and administration language is? That is
one. Second, can you please tell me in detail what process you
used, EPA, to come to that conclusion, and then, third, could you
tell me what outreach efforts you conducted to reach out to communities that are underserved, that are most heavily impacted?
Mr. HOLMSTEAD. The planning delays that you refer to, does that
mean the extent of time between the
Ms. SOLIS. Yes. Yes.
Mr. HOLMSTEAD. We actually think that that will improve the
plans, and I
Ms. SOLIS. As it affects underserved communities? Can you explain that?
Mr. HOLMSTEAD. Well, we think that it will improve the plans
everywhere. Our goal is to make sure that every area of the country has healthy air, and so we dont really distinguish one community from another. We want to make sure your community has

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clean air to breathe. We reallythat is our goal for the whole country. Itthesethis conformity process is a part of a much larger
effort, and we are spending enormous time and effort on it. We
hope that by giving a little more time between these plans, we will
actually get a better result by having better coordination, more detailed analysis. And I think generally, people agree on that. There
is some debate about whether it should be 4 years or 5 years, but
we think that will achieve a better result. We think there is a number of other things that can be accomplished, in part through the
transportation bill, things such as diesel retrofit, anti-idling programs, things that we and DOT are both working on, that have
very significant improvements, especially in heavily urbanized
areas. And I will say California has been at the forefront of supporting some of those efforts. I think the State now
Ms. SOLIS. They are puttingyeah, in many cases
Mr. HOLMSTEAD. Yeah.
Ms. SOLIS. [continuing] they are at the lead, yes.
Mr. HOLMSTEAD. Yeah. And they are putting, like
Ms. SOLIS. Right.
Mr. HOLMSTEAD. [continuing] as of this year, $140 million a year
into these diesel retrofit programs that should make a significant
difference. So we do recognize that there are areas, particularly
heavily urbanized areas, where this is an important issue, and we
are working not only at headquarters, but through our regional offices, to better address those.
Ms. SOLIS. Have you done any outreach to underserved communities at all? Is that anywhere in a part of your design?
Mr. HOLMSTEAD. Very much it is. We have a
Ms. SOLIS. Can you get us that information?
Mr. HOLMSTEAD. Yes. I would be happy to.
Ms. SOLIS. Okay. Because I want to go on to one more question.
You actually wrote an editorial, in the Chicago Tribune, that the
Presidents Clear Skies proposal has been endorsed by the National
Governors Association, National Association of Counties and the
U.S. Conference of Mayors and National Conference of Black Mayors. Is that, in fact, accurate? Did they, indeed, endorse this piece
of legislation?
Mr. HOLMSTEAD. Apparently, it was not accurate. I believed that
it was. TheyI think at least one of those groups said, is they endorsed the concept of a multi-pollutant bill that is very close to the
Clear Skies Act, but they had made it clear that they dont specifically endorse one act or another. So, I have learned my lesson, and
I will be more careful about
Ms. SOLIS. And that was an editorial that you wrote.
Mr. HOLMSTEAD. That was anit was a letter to the editor that
I wrote.
Ms. SOLIS. Right. So it was inaccurate.
Mr. HOLMSTEAD. Yes.
Ms. SOLIS. Okay. Thank you very much.
Mr. HOLMSTEAD. Thatonly that part of it was inaccurate.
Ms. SOLIS. Well, that is a large part. You are talking about major
organizations.
Mr. HOLMSTEAD. Yes.
Ms. SOLIS. Thank you.

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Mr. HALL. The Chair recognizes the gentleman from Pennsylvania, Mr. Murphy, for 5 minutes.
Mr. MURPHY. Thank you, Mr. Chairman, and I also want to
thank you for holding this hearing, and appreciate our panel being
here.
A couple of quick things. Mr. Holmstead, in your testimony, you
mentioned several programs that will greatly reduce vehicle emissions, namely the two diesel rules, and EPAs Tier Two program,
which enables more areas to meet Clean Air Act attainment requirements. Can you comment on how the impending promulgation
of the Clean Air Interstate Rule next week will further help communities meet these attainment goals?
Mr. HOLMSTEAD. The Clean Air Interstate Rule will actually be
the single biggest rule that EPA has done to improve air quality
since the 1970s, and throughout the eastern part of the United
States, it will substantially improve air quality. Because largely, in
that region of the country, we have a regional problem, and so, it
will, in fact, be from a public health perspective
Mr. MURPHY. What area of the country?
Mr. HOLMSTEAD. Really, everywhere east of the Mississippi.
Mr. MURPHY. Okay.
Mr. HOLMSTEAD. Pennsylvania in particular is one of the areas
that is affected by this transport of air pollution from power plants,
and this will reduce that very significantly, on sort of a gradual
glide path over time, and the idea has been to do that while at the
same time, preserving our energy diversity.
Mr. MURPHY. I know we have a problem like that in southwestern Pennsylvania, the Pittsburgh region, which receives daily
windborne things from our good friends in Ohio and West Virginia,
which we would rather they keep. But the second area here I wanted to ask about is, in the area of transportation air quality planners. As this goes through, can you help me understand this?
Whensince these groups have been meeting together, when it
comes under transportation planning, and that has been a great
benefit, does that include highway planning? Does it also include
mass transit?
Mr. NOTTINGHAM. Mr. Murphy, yes, both the transit and highway plans are merged together into a regional transportation plan.
Mr. MURPHY. Because I wanted to ask this. I know in Pennsylvania, our Governor is thinking of taking a substantial part of
highway funds, and transferring it over to our mass transit agencies, SEPTA in Philadelphia, and the Port Authority in Pittsburgh.
And I am curious if such things require any sort of review or planning, what impact that has on other areas of air quality. For example, if highways are not widened as they should, or ramps are not
built as they should be, you end up with a lot of traffic sitting still,
dumping a lot of pollutants into the air, even at the cost of just
maintaining mass transit at status quo, with no expansions at all.
Is there any requirements that such moves require any sort of review, or can that just be done?
Mr. NOTTINGHAM. Yes, sir. We, the Federal Highway Administration and the Federal Transit Administration, will need to sign off
on plan adjustments to reflect that type of, what we call, flexing
of highway funds into transit. There are several ways, and Penn-

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sylvania is very experienced at doing this, of flexing highway moneys into transit. It is not per se illegal or wrong at all. It cannot
those funds cannot go to operating expenses for transit. My understanding is many of the large transit agencies faced with cash-flow
problems really need money in the operating side, so we do keep
an eye to make sure that it is not going there. It is supposed to
go to the capital side. But
Mr. MURPHY. Capital side being what with mass transit? Purchase of bus?
Mr. NOTTINGHAM. Purchase ofyes, sir. It would be rail or bus
infrastructure, typically. Perhaps a facilityto a maintenance facility and that type of thing.
Mr. MURPHY. So in that, you will do a careful review of those
things as the request comes through.
Mr. NOTTINGHAM. We will, sir, and I would be happy to keep in
close touch with your office. We have heard from a number of offices within the Pennsylvania delegation, and to all those inquiries,
we have said we will closely coordinate with the delegation.
Mr. MURPHY. We are very concerned about that, because we
want to make sure that mass transit stays strong, but I know in
my district, unfortunately, I have a lot of interstate highways, and
no one ever bothered to finish the ramps, so we have some ramps
to nowhere, and some that are half done and three quarters done.
It isand I just see that as a lot of traffic sitting still, and not
doing what the interstate is supposed to do. So, I would hope you
review that very carefully, and I would appreciate any opportunity
to discuss this in more detail with you at another time.
Mr. NOTTINGHAM. Thank you, sir. We look forward to that.
Mr. MURPHY. Thank you. Thank you, Mr. Chairman.
Mr. HALL. The Chair recognizes the gentleman from Texas, Mr.
Gonzalez.
Mr. GONZALEZ. Thank you very much, Mr. Chairman, and first,
I apologize to the Chairman and members of the committee, and
of course, to the witnesses, because I have missed just about everything. And we try to do everything in the space of a day and a half
here, and it is rather difficult. But my question would go to Mr.
Holmstead. And I am from San Antonio. I represent half of San
Antonio. We are currently under, I think, the designation of deferred nonattainment. I dont want to compare it to anything, but
it is kind of a limbo, kind of a strange situation to be in. And of
course, we are 150 miles from Laredo, right up IH35, and so now
I am going to talk about cross-border trucking, and I dont know
how familiar you are with what is going on there, but of course,
there is a mandate to use low sulfur fuels, and that is for the
American trucks. The problem is with the Mexican trucks coming
across the border. I think there is a 3 week pilot project in Nogales,
Arizona to study this. My concern, and I hope whatever information we glean from that can be used, but is there anything anticipated, or what are you all doing regarding other areas, especially
in areas such as San Antonio, which I think would bear a tremendous amount of that type of traffic? And any update you may have,
and what you know regarding the Nogales situation.
Mr. HOLMSTEAD. I am glad that you asked that question, because
we have beenit is an issue that we have been looking at very

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closely, and I must say, working also very closely with our counterparts in the Mexican side of the border. We believe that on about
the same timeframe, that the low sulfur fuel is available in the
U.S., it will also be made available in northern Mexico. I understand that there are conversations at senior levels within the Mexican government, as you know, Pamex would have to make the
kinds of investments to provide that fuel. But our understanding
is that that fuel will be made available, and that they are also looking at other strategies for reducing the impacts of border crossings
there. You mentioned the project that we now have going on in Arizona, but it really will be applicable. We are looking at different
technologies for actually measuring the pollution, strategies for reducing the idling time for trucks that may be idling at the border.
At this point, based on the analysis that we have seen, we believe
that San Antonio will be able to meet its obligations to come into
attainment, consistent with this what we call early action compacts. And again, Iand I think all of us at EPA congratulate the
local officials, who have really seized that issue as a way to take
earlier action than they otherwise would have been required to do,
so that they wouldnt have an air quality problem. And currently,
they are on track, based on everything we see to ensure that they
do meet attainment. At the same time, we are watching the issue
of the cross-border traffic, to make sure that we have a good handle
on that.
Mr. GONZALEZ. Is there any timeframe as far as any studies,
anything that is going to be definitive as to what you discover? I
know if it starts March 11, it is 3 weeks. After you study, I guess
the measurement of the particles or whatever is involved, what are
we looking at as far as getting that information back? Because my
local area Council of Governments is obviously very concerned.
NAFTA has been resisted as far as the cross-border trucking is
concerned for many reasons, but now we find ourselves on the environmental end, which I dont think people anticipated unless it was
staged, and that was going to be the last hurdle. But what are we
looking at as far as something that is coming from you guys to say
that it does not pose any real problem for cities like San Antonio?
Mr. HOLMSTEAD. WeI may have to get back to you with a specific date. I know that that project does call for a report. It takes
some time to finish the report after the 3 week testing period, and
what I can do is make sure that we provide you with a date by
which we can get that report to you and to the officials in San Antonio.
Mr. GONZALEZ. That would be great. Thank you very much, Mr.
Holmstead, and I dont have any further questions. I yield back.
Mr. HALL. A lot of times, we save the best for last. And I recognize Mr. Otter, the gentleman from Idaho.
Mr. OTTER. Well, thank you, Mr. Chairman. You can go ahead
and talk as long as you want, if you are going to say things like
that.
Mr. Chairman, I too appreciate calling this hearing. I am reminded of the great promise when we passed ISTEA and then
TEA-21. I was then Lieutenant Governor of Idaho, and we were
going to not only spend all that money, which we successfully did,
and continue to do, but we were also going to have tremendous

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streamlining. That was really, for us in the west, that are continually frustrated by either the Endangered Species Act or the EPA,
or some other barrier to us being able to go forward with our
projects, but you know, Mr. Nottingham, the last time we met, we
met across the desk like this, only I was on the Transportation
Committee, and as I recall, you were with the State of Virginia, I
believe. How long ago was that? That was, what, 3 years ago,
something like that?
Mr. NOTTINGHAM. Three and a half years ago, sir.
Mr. OTTER. Yeah. Iand I remember one of the things that we
were working on was streamlining. Well, you know, the bad news
is we havent accomplished anything. The good news is is that we
are still talking about it. So hopefully we are going to get something done. But what I am concerned about is at the time, when
you were with the State of Virginia, you were there with thethen
the Governor of New Jersey, who had recently replaced, then, the
Director of the Environmental Protection Agency. And there was a
couple of other folks there who had legitimate complaints about the
inability of the Endangeredor the Environmental Protection
Agency to be able to move forward with any degree of certainly, or
at least consideration of time. In fact, as I recall, the Governor of
New Jersey said that they had a turnpike that they had been trying to put in for about 10 years, and still hadnt gotten all the permits, because of a three-toed frog or some blade of grass or something. That frustrated their construction of that, yet they were killing 32 people a year that they figured that they could stop.
And the reason I remember that is because that is the same
thing that is happening to me in Idaho. I have got one stretch in
Idaho we call Blood Alley, because we kill 32 people a year up
there on that. We have got $58 million sitting in the banks in
Idaho, or at least we did at the time we hadyou and I had our
meetingthat were waiting for some bureaucrat somewhere to
make a decision so that we could go forward with our construction
project simply putting shoulders on the road, so that those cars, if
they did run off the road, they at least had a chance of not wrecking and killing the people inside.
Do you, in your new capacity, do you see any hope for us being
able to move forward? I have voted against every transportation
bill because of the lack of streamlining in the bill. And I am going
to vote against this one, unless we get some streamlining in it.
Soand it doesnt mean much, because everybody else has got a
big Christmas tree in there, and they are going to vote for it anyway, with or without the streamlining. Do you see any hope that
we are going to be able to go forward legislatively, and if not, why
couldnt we go forward administratively with some of this streamlining?
Mr. NOTTINGHAM. Thank you, Mr. Otter. I will say it is much
easier commenting on the Federal Government from the State government perspective than it is from being within the Federal Government, but you raise some very serious and real issues. We have
a strong, and this, todays hearing, touches on one very important,
but fairly discrete sliver of the administrations overall environmental streamlining package that we have in our SAFETEA proposal. I will say, sadly, half or more has not made it into either

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of the bills that have been moving over the last couple of years, for
a number of reasons, but we really do hear everywhere we go,
across the States, and in MPOs and DOTs, and in communities, the
biggest frustration with transportation is why does it take so long
to deliver solutions? And people are okay with the reality that, on
occasion, the answer may well be dont build that project, because
it is not the right project at the right place, for environmental and
other reasons. People can accept that, but they dont like to wait
10 years
Mr. OTTER. Yeah.
Mr. NOTTINGHAM. [continuing] to hear that, and all the money.
So, we have a number of proposals, whether it is dealing with the
National Environmental Policy Act, the Section 4(f), where occasionally we see the fact that a very minor, de minimis impact on
a resource, a park, or a Federal land may trump all other environmental considerations, even if we can figure out a win-win
Mr. OTTER. Yeah.
Mr. NOTTINGHAM. [continuing] in other ways.
Mr. OTTER. Pardon me for interrupting you, but I got one more
question, and I want to get into Mr. Holmstead before my time
runs out. I thank you for your answer. Mr. Holmstead, if it had
been a U.S. trucking company that was in violation of the clean air
standard, you would have shut them down. Why cant we shut
down the Mexican trucks coming into the United States?
Mr. HOLMSTEAD. Well, the
Mr. OTTER. Wouldnt you have shut them down?
Mr. HOLMSTEAD. The answer is that the Mexican trucks who
come to the country are not in violation of any standards.
Mr. OTTER. That isnt what Mr. Gonzales indicated.
Mr. HOLMSTEAD. No. He suggested there was some concern about
the emissions coming across the border, but that doesnt mean that
they are violating any standards. GPA does not regulate vehicles
that are produced and purchased and domiciled in another country.
We are working with the Mexican government to harmonize their
standards with ours, and we believe that they will do that, even
though it may take a few years behind our schedule. But they are
not in violation of any standards.
Mr. OTTER. I thank you, Mr. Chairman. I see my time is up.
Mr. HALL. All right. I thank you, and I thank this panel very
much. We will release you gentlemen now, and ask the second
panel to come forward, if they would. And we thank you very, very
much.
Okay. We are honored to have the second panel before us today,
and we have Mr. Michael Clifford, who is the Director of Systems
Planning Applications, Department of Transportation Planning,
also a member of the Transportation Research Board and the Institute of Transportation Engineers. We are very pleased to have him.
We have Ms. Annette Liebe, who is Manager of the Oregon Department of Environmental Qualitys Air Quality Planning section,
and a former staff attorney at the Environmental Defense, Inc.
fund.
We also have Mr. Michael Replogle, Transportation Director for
Environmental Defense, author of many, many publications in

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transportation policy and planning, and several books, and we are
honored to have him.
We have Brian Holmes, who is Executive Director of the Maryland Highway Contractors Association. He is an incorporator of the
National Wetlands Coalition, Chairman of the Nationwide Public
Projects Coalition.
And we are honored to have you, and we recognize, at this time,
Mr. Clifford, for 5 minutes. You have been patiently here most of
the day, and you know the rules. Take as much time as you really
have to have. Be as brief as you feel like you ought to be. Thank
you.
Mr. CLIFFORD. Thank you very much, sir.
I would like to submit my written testimony for the record.
Mr. HALL. And without objection, you all may do that.
STATEMENTS OF MICHAEL CLIFFORD, DIRECTOR, SYSTEMS
PLANNING APPLICATIONS, METROPOLITAN WASHINGTON
COUNCIL OF GOVERNMENTS, ON BEHALF OF THE ASSOCIATION OF METROPOLITAN PLANNING ORGANIZATIONS; ANNETTE LIEBE, MANAGER, AIR QUALITY, OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, AIR QUALITY DIVISION, ON BEHALF OF STATE AND TERRITORIAL AIR POLLUTION PROGRAM ADMINISTRATORS AND ASSOCIATION OF
LOCAL AIR POLLUTION CONTROL OFFICIALS; MICHAEL
REPLOGLE, TRANSPORTATION DIRECTOR, ENVIRONMENTAL
DEFENSE; AND BRIAN HOLMES, EXECUTIVE DIRECTOR,
MARYLAND HIGHWAY CONTRACTORS ASSOCIATION, ON BEHALF OF AMERICAN ROAD AND TRANSPORTATION BUILDERS ASSOCIATION

Mr. CLIFFORD. Thanks. Good afternoon, Mr. Chairman and members of the subcommittee. I am Michael Clifford, Director of Systems Planning Applications for the National Capitol Region Transportation Planning Board. This Board is the metropolitan planning
organization, or MPO, for the Washington, DC region. I am testifying today on behalf of the Association of Metropolitan Planning
Organizations, AMPO, and in particular, as a member of AMPOs
Air Quality workgroup.
AMPO is a national association of MPOs, with membership from
200 metropolitan areas across the country, in air quality nonattainment and maintenance areas, MPOs have primary responsibility
for ensuring that transportation plans and programs do their fair
share to achieve and maintain the Federal air quality standards to
protect the health of our citizens. Accordingly, we are pleased to
have this opportunity to provide our perspective regarding the conformity provisions contained in H.R. 3, and I thank you for holding
this hearing.
I would like to begin by saying that we support the changes to
the transportation conformity program, as proposed in Section 1824
of the bill. The changes would allow MPOs to better utilize resources, and therefore, to better conduct metropolitan planning,
while continuing to work with air management agencies to improve
air quality in these metropolitan areas.
First, AMPO supports the proposal that conformity of transportation plans and programs be determined every 4 years. Because

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conformity must be determined before new programs or new plans
are adopted, many areas, including here in the Washington, DC region, begin an update at about the same time as conformity requirements are met for the previous one. It is basically a year
round, continuous conformity process.
Second, AMPO supports the proposed change to provide a 2 year
timeframe for redetermining conformity once triggered by a State
implementation plan, or a SIP. This represents an additional 6
months beyond the current 18 months requirement, thus allowing
more time for MPOs to integrate conformity determinations with
the proposed 4 year frequency cycle.
Third, AMPO applauds the provisions in H.R. 3 that would
change the time horizons for conformity determinations, so that air
quality and transportation planning timeframes are more similar.
Under the current requirements, conformity must be demonstrated
for the last year of the transportation plan, which is at least 20
years from the date of analysis. In contrast, SIPs are focused on
a shorter term attainment date, and do not have to forecast the
emissions and trends to any time beyond that point. The provisions
in H.R. 3 would tie these two planning horizons much more closely
together.
Fourth, I would like to emphasize AMPOs support for the transportation control measure, or TCM, substitution provisions in the
bill. This would allow MPOs working with air quality agencies and
EPA to revise or substitute new TCMs without a formal SIP revision.
Last, I wish to express my support for the language that provides
a formal definition of a conformity lapse. AMPO prefers this statutory definition, as it removes ambiguity that might lead to uneven
application across the country.
In conclusion, I believe these conformity provisions would more
closely align the air quality and transportation planning processes,
resulting in better transportation planning, fewer delays, and continued progress toward meeting our clean air goals.
Thank you for your time, and the opportunity to speak before
this subcommittee.
[The prepared statement of Michael Clifford follows:]
PREPARED STATEMENT OF MICHAEL CLIFFORD, DIRECTOR, SYSTEMS PLANNING APPLICATIONS, NATIONAL CAPITAL REGION TRANSPORTATION PLANNING BOARD, METROPOLITAN WASHINGTON COUNCIL OF GOVERNMENTS ON BEHALF OF THE ASSOCIATION
OF METROPOLITAN PLANNING ORGANIZATIONS
Good afternoon, Mr. Chairman and members of the Subcommittee. I am Michael
Clifford, Director of Systems Planning Applications for the National Capital Region
Transportation Planning Board, the Metropolitan Planning Organization (MPO) for
the Washington, DC region. I am testifying today on behalf of the Association of
Metropolitan Planning Organizations (AMPO), of which my MPO is an active member, and in particular as a member of AMPOs Air Quality Work Group.
AMPO is a national association of MPOs with membership from 200 metropolitan
areas in the country. In nonattainment and maintenance areas, MPOs have primary
responsibility for ensuring that transportation plans and programs do their fair
share to achieve and maintain the federal air quality standards and protect the
health of our citizens.
Accordingly, we are pleased to have this opportunity to provide our perspective
regarding the conformity provisions contained in H.R. 3, and I thank you and the
members of the Subcommittee for holding this hearing.
I would like to begin by saying that we support the changes to the transportation
conformity program in the Clean Air Act as proposed in Section 1824 of H.R. 3. The

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changes would allow MPOs to better utilize resources and, therefore, to better conduct metropolitan planning, while continuing to work with air quality agencies to
improve air quality in the nations metropolitan areas.
First, AMPO wholeheartedly supports the proposal that conformity of transportation plans and programs be determined every 4 years in nonattainment and maintenance areas. Currently, MPOs in nonattainment and maintenance areas must
demonstrate conformity of plans every three years and transportation improvement
programs (TIPs) every two years.
Because conformity must be determined before new TIPs or new plans are adopted, many areas, including here in the Washington, DC region, begin a TIP update
at about the same time as conformity requirements are met for the previous one.
When you also consider that a conformity determination is often triggered by a TIP
or Plan amendment, or a state implementation plan (SIP) trigger, the reality is that
a continuous conformity process is in place in many metro areas. Many MPOs, especially high-growth areas like this region, report to AMPO that they budget for at
least one conformity determination per year.
For example, the North Central Texas Council of Governments (NCTCOG) in the
Dallas-Fort Worth area performs one conformity analysis per year because of
TxDOTs transportation plan and TIP modifications. The Southeastern Wisconsin
Regional Planning Commission (SWRPC) in the Milwaukee area performed four
conformity determinations in the 2003-3004 timeframe.
What can be expected to improve by this change to a four-year frequency schedule
is the ability of planners to focus on issues just as important to metropolitan areas
as air quality. It is not simply technical staff time that is required for a conformity
determination. Conformity also requires numerous interagency consultation meetings, public hearings, and the full engagement of MPO board members. MPOs must
choose where to focus their limited planning resources, and elected MPO board
members must choose where to focus their available time.
AMPO members believe that long- and short-term transportation planning will
improve if metropolitan areas have more time to devote to it, rather than continuously determining conformity as many now do. A strengthened planning process
could evolve when the concern about short-term deadlines for conformity is lessened.
This has been borne out at AMPO meetings, where MPOs in areas without conformity requirements and areas where conformity is not a frequent activity report
that they are freer, from a resource perspective, to undertake activities such as scenario planning, enhanced public participation, and other innovative measures, than
are MPOs conducting conformity every year.
The changes proposed in H.R. 3 will not negatively affect local air quality, because
conformity must still be determined before an updated plan or TIP is adopted; air
quality impacts will still be analyzed before any major changes to the transportation
network are made, and a new SIP motor vehicle emissions budget would still trigger
a conformity determination.
Secondly, AMPO supports the proposed change to provide a two year timeframe
for redetermining conformity after an adequacy finding or approval of a motor vehicle emissions budget in a state implementation plan. This represents an additional
six months beyond the current 18 month requirement, thus allowing more time for
MPOs to integrate conformity determinations with the proposed four year frequency
cycle I just addressed.
SIP updates occur on a discretionary basis, rather than on a regular cycle as do
transportation plans and TIPs. Because of that, conformity triggers are unpredictable. The current 18-month SIP trigger requirement has caused uncertainty in the
transportation planning and TIP development processes. The additional six months
in your bill would improve the process by removing some of the pressure to demonstrate conformity in a short amount of time. It would also provide a measure of
certainty in the period after SIPs are due for the new 8-hour ozone and fine particulate standards, which will begin in 2007. These SIPs will establish the first motor
vehicle emissions budgets under those new standards.
Third, AMPO applauds the provisions in H.R. 3 that would change the time horizons for conformity determinations so that air quality and transportation planning
timeframes are more similar. Under the current requirements, conformity must be
demonstrated for the last year of the transportation plan, which is at least 20 years
from the date of analysis. In contrast, SIPs are focused on a shorter-term attainment date and do not have to forecast emissions and trends to any time beyond that
point.
For many 8-hour ozone nonattainment areas, for example, the attainment year,
and thus the last year of analysis in the SIP, will be 2010. After an area reaches
attainment, a maintenance plan must be developed and put in place that looks for-

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ward for a period of just 10 years. In contrast, conformity determinations being done
today forecast transportation-related emissions until at least 2025.
Because transportation agencies need to demonstrate conformity at least 20 years
out to the last year of the plan, transportation sources are constrained to the SIPs
motor vehicle emissions budget from the attainment year to the last year of the
transportation plan, unless the SIP specifically establishes emissions budgets for
years after the attainment date. In practice, few SIPs do this.
The mismatch in the timeframes for transportation and air quality plans has
placed a burden on the transportation sector where there are very few emission controls remaining for implementation that will yield notable emissions reductions.
This is especially true as vehicles continue to get cleaner due to the phase-in of federal emission and fuel standards. In 20 years, each mile of travel from a given vehicle will be cleaner, but this also means that each mile of travel reduced will result
in a much smaller emission benefit. Longer-term emission problems will require solutions from every emission sector, and the way to ensure they are all looked at is
to harmonize the planning timeframes so that all sources of emissions are on the
table, not just the transportation sector.
The provisions in H.R. 3 would tie these two planning horizons much more closely
together. The conformity determination would look forward at least 10 years from
the first year of the TIP or plan timeframe, and even further if a regionally significant project will not be completed until after that time. These provisions would still
ensure that transportation investments do not cause or contribute to air quality violations. And because the proposal calls for conducting a regional emissions analysis
for any years of the transportation plan that extend beyond this timeframe, planners will have advance notice if future transportation demand results in emissions
that are likely to worsen air quality.
Fourth, I would like to emphasize AMPOs support for the transportation control
measure (TCM) substitution provisions in the bill. The conformity regulations require that MPOs implement in a timely manner any TCMs identified in the SIP.
If a particular TCM fails to advance on schedule or perform as intended, revising,
adding, or substituting a new TCM currently requires a formal SIP revision, with
its attendant time requirements of development and EPA approval. This time period
would typically be a minimum of 12 months.
AMPO supports the language in the Bill that would allow MPOs, working with
air quality agencies and EPA, to revise or substitute new TCMs with equivalent
emission reductions, and timeframes for those reductions, without a formal SIP revision.
Our desire for this change stems from the fact that transportation agencies are
extremely reluctant to use TCMs now. This is because the success of many TCMs
is dependent upon changes in human behavior and other variables beyond the
MPOs influence; for other TCMs, funding that allows timely implementation may
fail to materialize. If the emission reductions fail to accrue as predicted, the MPO
is liable.
For example, the Metropolitan Transportation Commission (MTC) in the San
Francisco Bay Area was sued in 2001 for a TCM that was included in its 1982 SIP,
but not amended or revised to reflect current conditions. The court held that, even
though MTC was not taking emission credit for the TCM, it is obligated to implement the measure regardless of changed circumstances. The suit was eventually
concluded more in favor of MTC, but the resultant delays impeded both the transportation planning and air quality planning processes. Other MPOs are understandably reluctant to agree to TCMs for this very reason.
The Bill would provide for a more efficient and timely TCM substitution process,
which would provide MPOs with more assurances that TCMs are a viable emission
reduction strategy to use in the SIP.
Lastly, I wish to express my support for the language that provides a formal definition of a conformity lapse. AMPO prefers this statutory definition as it removes
ambiguity that might leave discretion to EPA or the courts, and uneven application
across the country.
In conclusion, I believe these conformity provisions would more closely align the
air quality and transportation planning processes, resulting in better transportation
planning, fewer delays, and continued progress toward meeting our clean air goals.
Thank you for your time and the opportunity to speak before this Subcommittee.

Mr. OTTER [presiding]. Thank you, Mr. Clifford. Ms. Liebe.

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STATEMENT OF ANNETTE LIEBE

Ms. LIEBE. Good afternoon, Mr. Chairman, and members of the

subcommittee. My name is Annette Liebe, and I am manager of the
Air Quality Planning section for the Oregon Department of Environmental Quality. I am here today testifying on behalf of STAPPA
and ALAPCO, the two national associations of air quality officials
in 53 States and territories, and over 165 major metropolitan
areas.
We are here today because transportation remains a dominant
source of air pollution across the Nation. These emissions contribute to premature mortality, reduced lung function, cancer, and
other serious health and environmental problems. Although we
continue to make great progress in reducing emissions from mobile
sources, it is clear that benefits from cleaner cars and trucks cannot keep pace with trends of steadily increasing vehicle miles traveled.
Our associations are acutely aware of the key role that transportation plays in our Nations economy. We also believe that transportation conformity and the congestion mitigation air quality improvement programs are critically important to the goal of achieving full integration of environmental and transportation decisionmaking. For this reason, our associations have adopted a set of
CMAC and transportation conformity principles for the reauthorization of transportation legislation. A copy of our principles is attached to our written statement.
With respect to transportation conformity, our associations
strongly believe that the purpose of the program, which is to ensure that the emissions from transportation plans, programs, and
projects stay within the capacity of an airshed, is absolutely crucial
to achieving clean air goals. Unless this purpose is achieved, it will
be necessary to call upon other source sectors, potentially including
small businesses, to further reduce emissions.
We believe conformity is working well, and endorse preserving
the major conformity requirements and schedules that are now in
place. Accordingly, we are troubled that the proposed changes to
transportation conformity in recent Senate and House legislation,
including H.R. 3, could seriously impair the ability of States and
localities to protect public health and welfare. We believe, however,
that the air quality provisions of the House bill are preferable to
those in the Senate. We are most concerned with proposals to
shorten the planning horizon for the transportation plan from 20
years to 10 years. In planning for clean air under the Clean Air
Act, we must not only chart a course for achieving healthful air
quality, but also for maintaining it over the long-term, 20 years
into the future once we meet the standards. Major transportation
investments can have huge air quality impacts, much of which may
not occur for several decades. These investments can also significantly promote sprawl and growth. Therefore, long term planning
over at least a 20-year period, is necessary to ensuring that air
quality impacts are identified and appropriate adjustments are
made early.
While both the Senate and House legislation seek to shorten the
time period, we prefer the language in H.R. 3, since it would require concurrence by the air pollution agency before the time pe-

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riod is reduced, as well as an emissions analysis to track air quality impacts. We believe that as it is currently structured, conformity provides ample flexibility to States to accommodate individual needs and circumstances, while maintaining the integrity of
the program. Rather than statutory changes, we believe that State
and local officials should retain the flexibility to work through a robust interagency consultation process to resolve issues addressing
their unique circumstances.
We strongly support the congestion mitigation air quality improvement program, and believe that it also can be strengthened
in several ways. Since CMAC was originally established, our understanding of transportation-related emissions and their impact
on public health and welfare have expanded significantly. EPA has
adopted new health-based standards for fine particulate matter
and ozone, and we are beginning to develop air quality plans to
meet these standards. Accordingly, we urge that the areas eligible
to receive CMAC funding be expanded, consistent with the recommendations included in our written testimony.
For example, areas like Portland, Oregon, that are close to violating the standards, should be eligible to receive CMAC funds in
order to avoid becoming a nonattainment area. We also support a
substantially increased Federal commitment of resources to the
CMAC program to reflect the true and very significant impact of
transportation-related emissions on public health and welfare. This
increase should be no less proportionately than that to be provided
for highway investments.
Finally, we recommend that concurrence of State and local air
quality agencies be required for CMAC project selection through a
well-defined consultation process. In Oregon, the Department of
Environmental Quality has participated in selecting CMAC projects
through the ongoing interagency consultation process that we established under our conformity rule.
Thank you for the opportunity to testify, and I am available to
answer any questions.
[The prepared statement of Annette Liebe follows:]
PREPARED STATEMENT OF ANNETTE LIEBE, MANAGER, AIR QUALITY PLANNING, OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY ON BEHALF OF THE STATE AND
TERRITORIAL AIR POLLUTION PROGRAM ADMINISTRATORS AND THE ASSOCIATION OF
LOCAL AIR POLLUTION CONTROL OFFICIALS
Good afternoon, Mr. Chairman and members of the Subcommittee. I am Annette
Liebe, Manager of the Air Quality Planning Section of the Oregon Department of
Environmental Quality. I am testifying today on behalf of STAPPAthe State and
Territorial Air Pollution Program Administratorsand ALAPCOthe Association of
Local Air Pollution Control Officialsthe two national associations of air quality officials in 53 states and territories and over 165 major metropolitan areas. The members of STAPPA and ALAPCO have primary responsibility under the Clean Air Act
for implementing our nations air pollution control laws and regulations and, moreover, for achieving and sustaining clean, healthful air for our citizens. Accordingly,
we are pleased to have this opportunity to provide our perspectives on (1) the proposed changes to the Clean Air Acts transportation conformity provisions contained
in H.R. 3, the Transportation Equity Act: A Legacy for Users, and (2) the Congestion Mitigation and Air Quality Improvement (CMAQ) program under this legislation.
STAPPA and ALAPCO are acutely aware of the key role that transportation plays
in our nations economy. We endorse the fundamental principle that transportation
and environmental goals need not be at odds with one another, but, rather, that our
transportation system can flourish and our economy can grow without jeopardizing

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the health of our citizens and the environment. In fact, our transportation choices
can make important contributions to health and environmental improvements.
Today, however, transportation remains a dominant source of air pollution across
the country, contributing substantially to unhealthful levels of ozone, particulate
matter (PM) and carbon monoxide (CO). In particular, according to the U.S. Environmental Protection Agency (EPA), these sources are responsible for over 40 percent of volatile organic compounds and more than 50 percent of nitrogen oxides
both of which are ozone precursorsand about a third of fine particulate matter
emissions and 70 percent of CO emissions. Transportation sources are also very significant contributors of greenhouse gasesincluding over a third of carbon dioxide
emissionsand toxic air pollutants, and play a role in the formation of regional
haze. Although EPAs standards for light-duty and heavy-duty vehicles will contribute to making great progress in reducing emissions from mobile sources, it is
clear that the benefits of these technological advances can not keep pace with current and foreseeable trends of steadily increasing vehicle miles traveled (VMT).
New research linking vehicle emissions to serious and adverse health effects on
children and other sensitive populations further supports the need for effective
transportation conformity and CMAQ programs. This research shows that:
1) children attending schools located adjacent to freeways suffer an increased prevalence of asthma and bronchitis;
2) children exposed to higher levels of motor vehicle-related pollutants experience
a permanent, life-long reduction in lung function compared to children living in
cleaner air; and
3) children who die of cancer before age 16 were far more likely to have been exposed to vehicle pollution as a fetus because the mother resided within 1 kilometer of a highway during and after pregnancy.
STAPPA and ALAPCO firmly believe that the transportation conformity and
CMAQ programs are critically important to achieving full integration of our environmental and transportation decision-making processes and ensuring that transportation choices do not undermine our efforts to sustain clean, healthful air throughout the country. Air pollution control is a zero-sum calculation. To the extent we
are not able to achieve the appropriate cost-effective emissions reductions from
transportation sources, we will have to resort to more costly alternative control
measures from some other industrial sources, including small businesses.
Our associations have adopted a set of transportation conformity and CMAQ principles for the reauthorization of transportation legislation and prepared a comparison of the air quality provisions of proposed House and Senate legislation from last
Congress. Both are attached to this testimony.
Transportation Conformity
STAPPA and ALAPCO remain firmly committed to the purpose of transportation
conformity, which is to ensure that shorter-term Transportation Improvement Programs (TIPs) and long-term Regional Transportation Plans (RTPs) contribute to the
timely attainment and maintenance of healthful air quality and achieve the motor
vehicle emissions budgets contained in State Implementation Plans (SIP) for air
quality. We believe that conformity can continue to be implemented as currently
written and intended.
In numerous areas, the conformity process has facilitated good working relationships between state and local air quality and transportation officials by requiring
consultation and coordination among agencies. The process has made air quality
and transportation planners more aware of each others objectives; resulted in the
inclusion in TIPs and RTPs of additional projects that benefit air quality; and
opened up the SIP development process to more input from the transportation community. Clearly, this has been the case in Oregon. STAPPA and ALAPCO believe
that we must continue to strive for such successes across the country. Moreover, our
associations strongly believe that the purpose of conformityto ensure that transportation plans and programs support healthful air qualityis fundamental to the
goal of achieving clean air, especially given the continued increase in motor vehicle
use and transportations contribution to poor air quality in many areas throughout
the country.
STAPPA and ALAPCO believe that the Clean Air Acts transportation conformity
program is working and strongly endorse preserving the major requirements and
schedules that are now in place. However, we are troubled that proposed changes
to transportation conformity in recent Senate and House legislation, including H.R.
3, could seriously weaken the program and undermine the ability of states and localities to attain and maintain national ambient air quality standards. We believe,
however, the most problematic provisions are included in the Senate bill, and

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strongly urge the House to reject them. Our major concerns with the proposed bills
follow.
First, our associations are extremely concerned that both Senate and House proposals seek to shorten the period of emissions analysis used to determine whether
a long-range plan conforms to the SIP. Under each proposal, the plans conformity
determination would be based on a 10-year horizon, rather than the current 20-year
horizon. We strongly oppose such a change, but believe the House provision is less
problematic to the conformity program than the Senate proposal.
Long-term planning, over a 20-year horizon, is imperative to ensuring that the potential growth in mobile source emissions is identified, the impact on air quality is
assessed and, where necessary, adjustments are made. In planning for clean air,
state and local air agencies must not only chart a course for achieving healthful air
quality, but also for maintaining it over the long term. Shortening the timeframe
over which a transportation plan is required to demonstrate conformity is extremely
troubling to us because it takes only the first part of our responsibilityattaining
an air quality standardinto account, and disregards our responsibility for maintaining clean air over the subsequent 20 years.
Major transportation projects can have huge air quality impacts, much of which
may not occur during the first ten years when the new highway has not yet been
filled to capacity. The greatest emissions impact of a new highway often occurs after
the first ten years when the resulting development corridor is fully developed and
the facility is again jammed with stop-and-go traffic. If we eliminate the responsibility to account for the impact of transportation investments beyond 10 years, then
we lose the opportunity to hold these projects accountable for their long-term contribution to air pollution, and severely compromise our ability to adequately protect
public health.
Accordingly, STAPPA and ALAPCO strongly oppose the Senate provisions mandating a shorter planning horizon of 10 years, with no flexibility to account for local
needs. While we are also disappointed that the House bill allows the conformity decision to be based on 10 years, we still find it preferable, since it does not mandate
a shorter planning horizon, but instead allows conformity to be based on emissions
during the first ten years only with the agreement of the air pollution control agency. We also support the provision in the House bill requiring an emissions analysis
for the additional years in the transportation plan even if the emissions in the outyears are not used for conformity purposes. This will alert the transportation and
air quality planners to possible future air quality problems and provide an opportunity to address them during the period of the next update of a transportation plan
before the future conformity violations cause a conformity lapse.
Second, STAPPA and ALAPCO are also concerned with proposals reducing the
frequency of conformity determinations for transportation plans from every three
years to every four years, and eliminating the requirement for conformity determinations on the TIP, currently conducted every two years. Our associations oppose
these changes, but believe they will have much less impact on the conformity process if the House language regarding long-term emissions analyses is adopted.
Third, we believe that regular and timely analyses must be maintained to demonstrate compliance of financially constrained TIPs and RTPs with SIP motor vehicle emission budgets. Such continued frequency will ensure that sound data are generated and allow for the timely adjustment of motor vehicle emissions estimates.
The longer the delay between emissions estimates, the longer emissions can grow
in excess of the emissions budgets planned for in the SIP to attain and maintain
the standards. If a violation of SIP budgets grows too large before it is discovered,
it not only will prevent attainment of the health-based air quality standards, but
may also become too difficult to correct through the transportation process within
a reasonable period of time. This may result in emission increases that cannot be
offset by transportation control strategies in time to meet the statutory deadlines
for reasonable progress or attainment of the health-based standards. In those situations, the failure of conformity will likely force additional emissions reductions from
stationary sources to achieve the overall reductions required for attainment.
In recognition of the desire of transportation officials to improve the alignment
of conformity timelines, STAPPA and ALAPCO recommend that the frequency of
the conformity analysis on the TIP and the RTP be synchronized. The House bill
requires synchronized determinations. The Senate bill does not.
Fourth, we are concerned with provisions of the Senate and House bills allowing
projects to be funded during a conformity lapse. The current conformity program
does not restrict project funding during a lapse for projects that reduce emissions
or do not increase emissions. Both the Senate and House bills expand these exemptions considerably. The Senate bill allows all but the largest regionally significant
projects to continue to be funded for an indefinite period during a conformity lapse,

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and does not require that emissions be reduced to comply with the SIP. The House
bill allows all projects, including regionally significant projects, to continue to be
funded during a conformity lapse, but limits the time period when projects may be
funded to 12 months, and requires transportation agencies to revise their plans and
take corrective actions to conform to the SIP budgets.
STAPPA and ALAPCO oppose expanding the current list of exemptions to include
projects that increase emissions. We believe this will exacerbate the exceedance of
SIP emissions budgets and make corrective action more difficult and expensive.
However, of the two proposals, we prefer the provision in H.R. 3, since it limits the
time period and requires corrective actions.
Fifth, STAPPA and ALAPCO strongly oppose the provision in the Senate bill that
eliminates emissions budgets in currently approved ozone SIPs until new plans for
the 8-hour ozone standard are submitted. EPA has already rejected this concept,
concluding that if the current SIP budgets were set asideas the Senate bill allowsozone-forming emissions from motor vehicles in major metropolitan areas
could increase significantly. According to EPA in its latest conformity rulemaking
(69 Fed Reg, pp 40026-27, July 1, 2004), vehicle emissions:
could increase anywhere from 10 to 50% of the 1-hour budgets, and because
motor vehicles represent a quarter to a half of all emissions in most metropolitan areas, the total emissions in an airshed could increase to the point where
areas cannot attain the 8-hour standard.
We are concerned that this provision could seriously impair the ability of states
and localities to attain and maintain the 8-hour ozone standard. Consequently, we
support the House on this issue and strongly recommend that you reject the Senate
language.
Finally, we are concerned that the Senate and House bills contain language that
conflicts with the Clean Air Act by potentially allowing non-conforming projects in
PM10 and PM2.5 nonattainment areas to be included in the TIP. The Clean Air Act
requires that no project cause or contribute to a violation of national ambient air
quality standards. The Act also requires that projects come from transportation
plans and improvement programs that do not cause violations of the NAAQS. But
the language in both bills would allow a transportation improvement program (TIP)
to be approved even if it includes projects that cause violations of the PM10 and
PM2.5 standards. It appears that this language has simply been carried forward
from the 1998 law without addressing the conflict with the Clean Air Act. To avoid
confusion and possibly conflicting interpretations of the provisions with the Clean
Air Act, the language needs to be removed from the bills.
As we mentioned, our associations believe transportation conformity is working.
We believe it is well worth the effort it requires, given the benefits that will follow
in terms of public health and implementation of smart-growth policies. In addition,
we believe that conformity as it is currently structured provides ample flexibility to
states and localities to accommodate individual needs and circumstances, while
maintaining the integrity of the program. Rather than statutory changes to such
elements as planning horizons, analysis frequency and grace periods, STAPPA and
ALAPCO believe that state and local officials should retain the flexibility to resolve
issues in the way that works best at the state and local level. This may involve revising the emissions budget in a SIP in one area, adding transportation control
measures to a TIP in another area or extending the air quality planning horizon
in yet another area. In each case, the state and local officials can develop the best
solutions for their jurisdictions through a strengthened interagency consultation
process.
Congestion Mitigation and Air Quality Improvement (CMAQ) Program
STAPPA and ALAPCO strongly support the CMAQ program, which provides a
discrete source of funding set aside for transportation projects that meet air quality
objectives and for projects that result in sustainable air quality improvement. The
CMAQ program appropriately reinforces the interrelationship between the transportation and air quality planning processes by specifically recognizing and funding
projects designed to reduce the transportation sectors impact on air quality. Over
the past 10 years, states and localities have demonstrated that CMAQ can play a
significant role in addressing transportation-related air quality problems. We believe, however, that this important program can be strengthened in several ways.
First, since CMAQ was originally established, understanding of the scope and
magnitude of transportation-related emissions and their impact on air quality has
expanded significantly. EPA has adopted new, health-based National Ambient Air
Quality Standards (NAAQS) for fine particulate matter and 8-hour ozone, and states
are now beginning to prepare State Implementation Plans to demonstrate attainment of these standards. A National-Scale Air Toxics Assessment concluded that

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motor vehicles are the largest source of hazardous air pollutants nationwide, producing nearly 1.4 million tons of air toxics each year.
While STAPPA and ALAPCO believe CMAQ funds should be apportioned based
on the severity of an areas air quality problem, we urge that the areas eligible to
receive CMAQ funding be expanded from 1-hour ozone, PM10 and CO nonattainment
and maintenance areas, to also include PM2.5 and 8-hour ozone nonattainment and
maintenance areas; areas nearing nonattainment; areas whose transportation-related emissions have an impact on a nonattainment area; and areas that experience
other air quality problems as a result of transportation-related emissions, including,
but not limited to, hazardous air pollutants from mobile sources.
Accordingly, we believe that the historic allocation of CMAQ funds is inadequate.
We strongly urge a substantially increased federal commitment of resources to the
CMAQ program, to reflect the true and very significant impact of transportationrelated emissions on air quality. This increase should be no less, proportionately,
than that to be provided for other highway investments.
In Oregon, CMAQ funds have been used to implement transportation control
measure commitments in numerous maintenance plans. Some examples include expansion of transit service and programs, support of transit-oriented development,
implementation of commuter trip-reduction programs, expansion of bicycle and pedestrian facilities and the purchase of advanced equipment to remove winter road
sand that could contribute to PM10. In order to meet the challenges of implementing
new standards to protect public health, we believe funding should increase for these
types of projects and be available for areas committed to making progress to maintain healthful air.
With respect to project eligibility, we urge that greater emphasis be placed on
projects that will result in direct, timely and sustained air quality benefits. Certain
types of congestion mitigation projects, such as road and bridge construction and expansion, may have the long-term effect of promoting growth in VMT and urban
sprawl, and of creating new congested corridors. We also recommend that to qualify
for CMAQ funds, a project should be required to demonstrate that a minimum air
quality benefit threshold is met or exceeded, based on established criteria and supporting data, and with the concurrence of the appropriate state and/or local air quality agency. This concurrence should occur through a well-defined consultation and
concurrence process. In Oregon, the Department of Environmental Quality has participated in selecting CMAQ projects through the ongoing interagency consultation
process that we established under our conformity rules.
Conclusion
In its policy on transportation and air quality, the National Governors Association states:
With the enactment of the Clean Air Act Amendments of 1990, the Intermodal Surface Transportation Efficiency Act of 1991, and the Transportation
Equity Act for the 21st Century, Congress took steps to advance two essential
national goals: achieving air quality standards and providing for the transportation needs of the American people. The Governors strongly support the attainment of both of these goals and believe that neither should be sacrificed in pursuit of the other.
STAPPA and ALAPCO embrace this perspective, as well. We look forward to
working with members of this Subcommittee as discussions regarding transportation conformity and CMAQ continue.
Thank you for this opportunity to testify.
Comparison of Air Quality Provisions of S. 1072, the Safe, Accountable, Flexible and
Efficient Transportation Equity Act of 2004 (February 26, 2004)
and
H.R. 3550, the Transportation Equity Act: A Legacy for Users (April 2, 2004)
Prepared by the State and Territorial Air Pollution Program Administrators and the
Association of Local Air Pollution Control Officials
May 10, 2004
Earlier this year, the U.S. Senate and the U.S. House of Representatives passed
comprehensive transportation legislation, including authorization, for six years, of
funds for federal transportation programs. Both billsS. 1072, the Safe, Accountable, Flexible and Efficient Transportation Equity Act of 2004, and H.R. 3550, the
Transportation Equity Act: A Legacy for Usersinclude provisions that will amend
the Clean Air Act as well as transportation law. In particular, the bills substantially

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change current law and/or requirements for transportation conformity, the Congestion Mitigation and Air Quality Improvement (CMAQ) program and other programs
with air quality impacts.
Below is a comparison of key air-related provisions of the Senate and House bills.
For each issue noted, STAPPA and ALAPCO have identified their preference between the two bills.
Transportation Conformity
Over the past decade or so since it has been implemented under the Clean Air
Act (CAA), transportation conformity has proven to be a key tool for ensuring that
our transportation choices contribute torather than undermineprogress toward
achievement of healthful air quality. Further, as our nation prepares to implement
new, health-based National Ambient Air Quality Standards (NAAQS) for 8-hour
ozone and fine particulate matter (PM2.5), the critical need to continue implementing
conformity as it is currently structured is clear.
Both the Senate and House bills contain provisions that would severely weaken
transportation conformity. Though the conformity provisions of the two bills differ,
both would substantially reduce the transportation sectors accountability for the
pollution it creates, threatening the failure of state and local air pollution clean-up
plans and unfairly forcing states and localities to respond by placing a greater pollution clean-up burden on other sectors of the economy. Because transportation emissions account for half of all ozone precursors and a large portion of PM2.5 in most
metropolitan areas, reducing the accountability of the transportation sector will seriously jeopardize the ability of states and localities to achieve and sustain clean air
and public health goals. Given these significant adverse impacts, STAPPA and
ALAPCO would strongly prefer that the final transportation bill that emerges from
Congress not include any changes to the transportation conformity program and, instead, preserve the conformity program requirements and schedules currently in
place. For this reason, the associations generally prefer the House bill, which shows
greater restraint in relaxing the conformity program.
Conformity Horizon for Transportation Plans
SenateS. 1072, sec. 1615(b)(4) (pp. 272-273), reduces from 20 years the planning horizon over which conformity must be demonstrated by defining a transportation plan as limited to the longer of 1) the first 10 years of the transportation plan
adopted pursuant to 23 USC 134(g), 2) the latest date for which the State Implementation Plan (SIP) establishes an emissions budget or 3) the year after the completion date of a regionally significant project that requires approval before the
subsequent conformity determination.
HouseH.R. 3550, sec. 1824(c) (pp. 374-376), continues to require that conformity be demonstrated through the last year of the transportation plan (i.e., for
20 years) except in areas where the metropolitan planning organization (MPO) and
air pollution control agency agree to reduce the horizon. In such cases, the bill does
not shorten the planning horizon by defining the term of the transportation plan,
but instead requires a conformity determination for the period ending in the later
of 1) the tenth year of the transportation plan, 2) the attainment date or 3) the year
following completion of a project that will be programmed in the Transportation Improvement Program (TIP) or receive approval before the subsequent conformity determination. The requirement that the conformity determination must address the
period prior to the horizon date requires a showing that the area will conform during the period in addition to a projection of conformity for the latest horizon date.
H.R. 3550 also requires an emissions analysis for the years of the transportation
plan that extend beyond the horizon date used for the conformity demonstration. S.
1072 does not include a counterpart provision.
STAPPA/ALAPCO RecommendationSTAPPA and ALAPCOs strong preference is that the existing 20-year conformity horizon be retained; neither bill provides for this. Of the two bills, we believe the House billwhich allows for a shorter
horizon only with the agreement of the air pollution control agency, and requires
an emissions analysis for the additional years in the transportation plan beyond the
10-year horizon dateis preferable.
Transition to New Air Quality Standards
SenateS. 1072, sec. 1616 (pp. 276-278), amends CAA requirements and EPA
regulations that govern the methods for determining conformity before an emissions
budget is available to implement a new NAAQS. These changes would allow an 8hour ozone nonattainment area that currently has a 1-hour ozone budget to stop
conforming to that budget and, instead, authorize EPA to establish other tests to
determine conformity.
HouseH.R. 3550 has no counterpart provisions.

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STAPPA/ALAPCO RecommendationIn November 2003, EPA proposed a
change to its transportation conformity regulations to create an option similar to
that in the Senate bill, to allow areas not to comply with emissions budgets in approved SIPs during the multi-year hiatus before new emissions budgets are adopted
to implement the 8-hour ozone NAAQS. STAPPA and ALAPCO opposed this proposed regulatory change in December 22, 2003 comments to EPA, explaining that
removal of existing budgets will allow much higher emissions during the interim period prior to the development of new ozone SIPs, and that substantial deterioration
in air quality will occur during that period. STAPPA and ALAPCO continue to hold
this view and, therefore, believe the House bill is preferable. If, however, the Senate
provision is used as the basis for the conference bill, it should be revised to maintain
the use of currently approved emissions budgets by allowing EPA to prescribe an
alternative conformity test only if the state has not already adopted an emissions
budget for ozone. For example, at the beginning of sec. 1616(3)(A)(ii) (p. 277), add
if no such budget, as described in 3(A)(i) above, has been found adequate or has
been approved,.
Frequency of Transportation Plan and TIP Conformity Determinations
SenateS. 1072, sec. 1615(a) (pp. 268-269), reduces the frequency of conformity
determinations for the TIP and Regional Transportation Plan (RTP) in nonattainment and maintenance areas from at least every three years (under current law)
to every four years, unless the MPO elects to redetermine conformity more frequently or a conformity trigger is pulled. The Senate bill also reduces the frequency of updates to the TIPfrom every two years to every four years, unless the
MPO elects to update more frequentlyand the RTPfrom every three years to
every four years in nonattainment and maintenance areas and to every five years
in attainment areas that have never been designated nonattainment, unless the
MPO elects to update more frequently; the TIP and the RTP are not required to
be updated on the same schedule.
HouseH.R. 3550, sec. 1824(b) (pp. 373-374), reduces the frequency of conformity
determinations for the TIP and RTP in nonattainment and maintenance areas from
at least every three years (under current law) to every four years, unless the MPO
elects to redetermine conformity more frequently or a conformity trigger is pulled.
Under secs. 5213(g) (p. 831) and 5213(h) (p. 836), the bill also reduces the frequency
of updates to the TIP and RTP to every four years in all cases, unless the MPO
elects to update more frequently.
STAPPA/ALAPCO RecommendationSTAPPA and ALAPCO have suggested
synchronizing conformity determinations on and updates to the TIP and RTP, to
occur at least every three years; both bills, however, go further in reducing frequency. Of the two bills, we believe the House bill is preferable.
Triggers for Conformity Determinations
SenateS. 1072, sec. 1615(b) (pp. 270-272), revises the triggers for redetermining conformity to allow for less frequent conformity determinations. The current
trigger of SIP submittal is replaced under subparagraph (2)(E)(i) with EPAs adequacy determination of a submitted budget, which typically comes four to five
months after SIP submittal. Under subparagraph (2)(E)(ii), the current trigger of
SIP approval if a SIP adds, deletes or changes TCMs, is replaced with SIP approval
if the budget has not yet been used for a conformity determination. The bill also
extends the grace period after which MPOs must conduct a triggered conformity redetermination for the TIP and RTP from not later than 18 months after a trigger
to not later than two years after.
HouseH.R. 3550 contains counterpart provisions in sec. 1824(a) (pp. 372-373),
except that the second trigger is based on EPA approval or promulgation of a SIP
that establishes a motor vehicle emissions budget (MVEB) where none previously
existed or that significantly varies from a budget that had taken effect as a result
of an adequacy determination or a prior SIP approval.
STAPPA/ALAPCO RecommendationSTAPPA and ALAPCO have advocated
for retention of the existing triggers and the 18-month grace period; both bills deviate from this. The difference between the two bills, with respect to the second trigger, is that the Senate bill would allow the two-year grace period clock to restart
before the conformity determination is conducted, while the House bill would only
restart the two-year clock if the budget in the approved SIP differs from the prior
budget. Of the two bills, we believe the House bill is preferable.
Conformity Lapse Grace Period
HouseH.R. 3550, sec. 1824(e) (pp. 378-379), enacts a 12-month grace period following a conformity failure, during which an area can amend its transportation

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plan, if necessary, to modify the project list or add TCMs sufficient to achieve emissions levels required by the MVEB in the applicable SIP.
SenateS. 1072 has no counterpart provisions.
STAPPA/ALAPCO RecommendationThe House addition of a 12-month grace
period to delay the effect of a conformity lapse after a transportation plan or program is found to be inconsistent with the air quality plan would inappropriately
allow transportation projects to move forward even after it is determined that the
transportation plan or program is at odds with the air quality plan. STAPPA and
ALAPCO, therefore, prefer the Senate bill.
Limiting Conformity to Regionally Significant Projects
SenateS. 1072, sec. 1615(b) (pp. 273-275), defines the term transportation
project as used in CAA 176(c)(2)(C) to mean only a regionally significant project
or a change to a project that makes it regionally significant. The CAA prohibits DOT
from funding or approving any transportation project unless it comes from a conforming RTP and TIP. The new definition of transportation project changes the
applicability of the conformity provisions of CAA 176(c)(2)C) from all projects in
a conforming plan or TIP to only those that are regionally significant or that make
a significant revision to an existing project. Therefore, non-regionally significant
projects could be approved, accepted or funded during a conformity lapse when the
plan or TIP does not conform.
S. 1072 also amends every use of the term project by adding transportation
to bring it under the new definition of transportation project as regionally significant. This language narrows the scope of CAA 176(c)(3)(B)(ii), regarding carbon
monoxide, to exempt from conformity those projects that create a CO hotspot if they
are not regionally significant.
HouseH.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO RecommendationSTAPPA and ALAPCO prefer the House
bill because the Senate bill would allow large numbers of projects to evade conformity review, thereby allowing projects to be funded even if they would contribute
to a conformity lapse.
Conformity of Projects Listed in the TIP
SenateS. 1072, sec. 3006 (pp. 598-599), reenacts the transportation planning
provisions of 23 USC 5303 (g)(4)(D)(iii) by requiring that projects listed in the TIP
conform under the CAA if they are located in an area designated nonattainment for
ozone or carbon monoxide. However, under this language, projects in PM10 or PM2.5
nonattainment areas that do not conform under the CAA may be still included in
the TIP project list and, therefore, funded.
HouseH.R. 3550 contains a counterpart provision in sec. 6001 (p. 857).
STAPPA/ALAPCO RecommendationThis provision, which is limited to ozone
and carbon monoxide, appears to create a conflict with CAA 176(c), which requires
that conformity apply to any area designated nonattainment for ozone, carbon monoxide or PM, and to ozone, carbon monoxide or PM areas that are now designated
attainment but which were previously nonattainment. This provision should be deleted. If the provision is retained, however, it should be 1) amended to also include
all nonattainment areas for any particulate matter standard and 2) expanded to include all former nonattainment areas redesignated to attainment, so as to avoid a
repeal by implication of the scope of conformity in CAA 176(c).
Congestion Mitigation and Air Quality Improvement Program
STAPPA and ALAPCO strongly support the CMAQ program, which provides a
discrete source of funding explicitly set aside for transportation projects that meet
air quality objectives and for projects that result in sustainable air quality improvement. The CMAQ program appropriately reinforces the interrelationship between
the transportation and air quality planning processes by specifically recognizing and
seeking to ameliorate the transportation sectors impact on air quality. Since 1991,
when the program was established, it has been demonstrated that CMAQ can play
a significant role in helping states and localities address transportation-related air
quality problems.
Our associations believe, however, that this important program should be
strengthened in several ways: 1) by requiring the concurrence of state and local air
quality agencies for CMAQ project evaluation and selection; 2) by expanding the
areas eligible to receive CMAQ funding; 3) by placing greater emphasis on projects
that will result in direct, timely and sustained air quality benefits; and 4) by substantially increasing the federal commitment of resources to the CMAQ program, to
reflect the true and very significant impact of transportation-related emissions on
air quality.

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Role of Air Quality Agencies in the Evaluation and Selection of CMAQ Projects
SenateS. 1072, sec. 1613 (p. 266), requires the U.S. DOT Secretary to encourage States and metropolitan planning organizations to consult with State and local
air quality agencies in nonattainment and maintenance areas on the estimated
emission reductions from proposed congestion mitigation and air quality improvement programs and projects.
HouseH.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO RecommendationSTAPPA and ALAPCO have advocated
strongly that state and local air pollution control agencies be given a concurrence
role in the evaluation and selection of CMAQ projects; neither bill provides for this.
Of the two bills, we believe the Senate billwhich, at least, encourages consultation
on estimated emission reductionsis preferable.
Addition of Areas Eligible for CMAQ Funding
SenateS. 1072, sec. 1611 (pp. 261-263), expands areas eligible to receive CMAQ
funding to include PM2.5 (in addition to ozone and carbon monoxide) nonattainment
and maintenance areas. By continuing to refer generally to ozone nonattainment
and maintenance areas, the bill also allows 8-hour ozone nonattainment and maintenance areas to be eligible for CMAQ funding.
HouseH.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO RecommendationSTAPPA and ALAPCO believe that
areas eligible to receive CMAQ funding should be expanded to include not only 8hour ozone and PM2.5 nonattainment and maintenance areas, but PM10 nonattainment and maintenance areas as well. The associations further believe that CMAQ
eligibility should be extended to areas nearing nonattainment; areas whose transportation-related emissions have an impact on a nonattainment area; and areas that
experience other air quality problems as a result of transportation-related emissions, including, but not limited to, hazardous air pollutants from mobile sources.
Neither bill provides for expansion to this extent. Of the two bills, we believe the
Senate billwhich expands eligibility for CMAQ funding to PM2.5 and 8-hour ozone
nonattainment and maintenance areasis preferable. We urge that the language be
revised to also ensure the eligibility of PM10 nonattainment and maintenance areas.
Expansion of Projects Eligible for CMAQ Funding to Include Transportation Systems
Management and Operations
SenateS. 1072, sec. 1701 (pp. 293-300), expands the scope of projects eligible
for CMAQ funding to include those that improve transportation systems management and operations without any showing that such projects will improve air quality. The broad definition of transportation systems management and operations includes, among others, such projects and activities as traffic detection and surveillance, work zone management, electronic toll collection, roadway weather management and traveler information services, all of which are unrelated to improving air
quality.
HouseH.R. 3550 contains counterpart provisions in sec. 1202 (pp. 118-119).
STAPPA/ALAPCO RecommendationThe provisions included in both bills
would inappropriately open the limited funds available for CMAQ to projects unrelated to air quality. STAPPA and ALAPCO urge that they be deleted.
Authorization of CMAQ Funds
SenateS. 1072, sec. 1101, authorizes $13,435,344,394 over six years (2004-2009)
for the CMAQ program.
HouseH.R. 3550, sec. 1101, authorizes $9,388,989,000 over six years (20042009) for the CMAQ program.
STAPPA/ALAPCO RecommendationFunding for CMAQ in FYs 1998
through 2003 was $8,122,572,000. STAPPA and ALAPCO believe the historic allocation of CMAQ funds is inadequate to address transportation-related air quality
problems that exist now and that will exist in the future. The associations have advocated that overall funding of the CMAQ program should be increased significantly
to reflect the expanding scope and magnitude of transportation-related emissions
and their impact on air quality, and to accommodate new PM2.5 and 8-hour ozone
nonattainment areas. Of the two bills, we believe the Senate billwhich provides
a greater increase in CMAQ fundingis preferable.
Other Issues
TCM Substitution
SenateS. 1072, sec. 1617 (pp. 278-282), establishes a procedure for adding or
substituting TCMs in the SIP. Although the bill allows for the addition or replacement of TCMs, provided the substituted measures achieve equivalent or greater

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emission reductions and are implemented on a schedule consistent with that for
TCMs in the SIP, the bill specifically does not provide any agency with the lead role,
and does not provide the air pollution control agency with even a concurrence role
in determining whether a TCM should be substituted and, if so, what the substitute
measure(s) should be. Instead, the Senate bill merely provides air agencies with a
general role in a collaborative process and a concurrence role only with respect to
determining the equivalency of the substitute or additional measure(s). In addition,
Subparagraph (B), regarding adoption of substitute or additional TCMs, could force
a state to change its SIP even if it is adequate for attainment. Subparagraph (D)
eliminates the conformity mechanism in current law for ensuring that TCMs are
funded and implemented.
HouseH.R. 3550, sec. 1824(d) (pp. 376-378), also includes provisions for TCM
substitutions, but expressly states that the state may (versus shall) approve the
changes to its SIP and requires the MPO to determine that funding is available in
the TIP to ensure implementation of the new TCMs.
STAPPA/ALAPCO RecommendationAlthough STAPPA and ALAPCO support the concept of TCM substitution, the associations do not believe legislative action is necessary or appropriate. However, of the two bills, we believe the House
billwhich corrects many of the deficiencies of the Senate billis preferable.
Integration of Natural Resource Concerns into State and Metropolitan Transportation Planning
SenateS. 1072, secs. 1501(a)(1)(A)(ii) and 1501(b)(1)(A)(ii) (pp. 152-153), adds
minimizing adverse health effects from mobile source air pollution to the list of
planning factors for MPO and state long-range transportation plans that MPOs are
not required to consider (because judicial review is barred even if the factors are
not considered at all). In addition, the bill adds a new paragraph (f)(2) to 134 and
135, allowing the MPO or state to determine which of the factors described in paragraph (1) are most appropriate for the metropolitan area to consider. This provides
more explicit authority for planning agencies to disregard any factors they determine are not appropriate.
HouseH.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO RecommendationThe Senate provisions are highly problematic because 1) MPOs and states are granted discretion not to consider the adverse health effects of mobile source air pollution and 2) if the health effects of air
pollution are considered to encompass the emissions regulated under conformity,
then the bar against judicial review could be held to bar judicial review of MPO or
state conformity determinations. STAPPA and ALAPCO, therefore, prefer the House
bill.
Transportation Project Development Process
SenateS. 1072, sec. 1511 (pp. 180-184), adds a new 326 to 23 USC. Paragraphs (f)(7) and (g)(6) allow U.S. DOT, as the lead agency, to determine whether
air quality, water quality, species and habitat protection, transportation and land
use plans are appropriate for consideration in determining the purpose and need for
a project. As written, the new language inappropriately allows the lead agency discretion to disregard environmental protection plans, which could include, among
other things, SIP requirements for TCMs.
HouseH.R. 3550 has no counterpart provisions.
STAPPA/ALAPCO RecommendationSTAPPA and ALAPCO prefer the House
bill. If, however, the Senate provisions are used as the basis for the conference bill,
they should be revisedin both (f)(7) and (g)(6)to ensure that consideration of and
compliance with applicable environmental, land use and other plans adopted to protect community resources are not discretionary. For example, the language of (f)(7)
and (g)(6) should be amended to read FACTORS TO CONSIDERThe lead agency
will ensure that the following factors and documents are considered and complied
with in determining the purpose of and need for a project.
STAPPA/ALAPCO
CMAQ and Transportation Conformity Principles for Reauthorization of
TEA-21
October 1, 2002
Transportation is the dominant source of air pollution in our nation, posing a significant threat to public health. The State and Territorial Air Pollution Program Administrators (STAPPA) and the Association of Local Air Pollution Control Officials

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(ALAPCO) endorse the fundamental principle that transportation and air quality
goals should be harmonized to ensure that our transportation choices contribute to
improving our environment. As we seek to reduce transportation-related emissions,
we recognize the critical importance of the Congestion Mitigation and Air Quality
Improvement (CMAQ) program, long-term air quality/transportation planning processes and close collaboration and cooperation between air quality and transportation
agencies in harmonizing air quality and transportation goals. As the Transportation
Equity Act for the 21st Century (TEA-21) undergoes reauthorization, STAPPA and
ALAPCO urge that opportunities for enhancing these programs and processes be explored.
Congestion Mitigation and Air Quality Improvement Program
STAPPA and ALAPCO strongly support the CMAQ program, which appropriately
reinforces the interrelationship between the transportation and air quality planning
processes by specifically recognizing and seeking to ameliorate the transportation
sectors impact on air quality. Over the past ten years, it has been demonstrated
that CMAQwhich provides a discrete source of funding explicitly set aside for
transportation projects that meet air quality objectives and for projects that result
in sustainable air quality improvementcan play a significant role in helping states
and localities address transportation-related air pollution problems. As CMAQ undergoes review as part of the reauthorization of TEA-21, STAPPA and ALAPCO
offer the following principles for enhancing the program:
Role of Air Quality Agencies in CMAQ Project Selection
State and local air quality agencies must have a more defined and consistent role
in the evaluation and selection of CMAQ projects.
The concurrence of state and local air quality agencies must be required for
project selection, through a well-defined consultation and concurrence process.
Increase in CMAQ Funds and Expansion of Areas Eligible to Receive Funding
The historic allocation of CMAQ funds is inadequate to address transportationrelated air quality problems that exist now and that will exist in the future.
Therefore, overall funding of the CMAQ program should be increased, to reflect
the expanding scope and magnitude of transportation-related emissions and
their impact on air quality, and in anticipation of new PM2.5 and 8-hour ozone
nonattainment areas.
CMAQ funding should be apportioned based on the severity of an areas air quality problem and its population.
The types of areas currently eligible to receive CMAQ funding (i.e., 1-hour ozone,
PM10 and CO nonattainment and maintenance areas) should be expanded to include PM2.5 and 8-hour ozone nonattainment and maintenance areas.
Areas eligible to receive funding should also include:
areas nearing nonattainment;
areas whose transportation-related emissions have an impact on a nonattainment area; and
areas that experience other air quality problems as a result of transportationrelated emissions, including, but not limited to, hazardous air pollutants from
mobile sources.
Project Eligibility
Greater emphasis should be placed on projects that will result in direct, timely
and sustained air quality benefits; criteria for substantiating such benefits
should be established and data to support the quantification of such benefits
should be required.
Certain types of congestion mitigation projects (e.g., road and bridge construction
and expansion) may have the long-term effect of inducing growth in vehicle
miles traveled and urban sprawl, and of creating new congestion corridors.
CMAQ funding should be shifted away from such projects unless there is a demonstration that these projects will result in sustained air quality benefits.
To qualify for CMAQ funds, a project should be required to demonstrate that a
specified minimum air quality benefit threshold is met or exceeded, based on
established criteria and supporting data; such a threshold should be determined
with the concurrence of the appropriate state and/or local air quality agency.
Funding eligibility criteria and guidance should be more clearly defined to meet
the above objectives.
To the extent that these project eligibility criteria are followed, states and localities should then have discretion in determining which qualifying projects receive funding.

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Project Funding Beyond Three Years
Project funding beyond three years should be allowed and decided on a case-bycase basis and contingent on a demonstration of need and continuing air quality
benefit.
Such extended project funding should be phased out over time.
Transportation Conformity
Implementation of transportation conformity as Congress envisioned it in Section
176(c) of the Clean Air Act Amendments of 1990 has only begun to occur within the
last few years. Delays in establishing motor vehicle emissions budgets resulted in
the unintended consequence of protracted use of the less-than-perfect build/no-build
test for determining conformity. However, now that motor vehicle budgets are in
place in nonattainment areas, STAPPA and ALAPCO firmly believe that conformity
can be implemented as intended, and that its purposeto ensure that shorter-term
Transportation Improvement Programs (TIPs) and long-term Regional Transportation Plans (RTPs) contribute to the timely attainment of healthful air quality and
are consistent with (i.e., conform to) the motor vehicle emissions budgets contained
in the State Implementation Plan (SIP) for air qualitycan be fulfilled with increasing success.
Because the conformity of transportation plans to air quality plans is critical to
achieving clean air goalsparticularly given the continued increase in motor vehicle
use and vehicle miles traveledpreserving the conformity requirements and schedules now in place is crucial. Specifically, STAPPA and ALAPCO recommend the following:
Frequency of Conformity Determinations
Regular and timely analyses to demonstrate compliance of constrained TIPs and
RTPs with SIP motor vehicle budgets must be maintained. Such continued frequency will ensure that sound data is generated and allow for the timely improvement of motor vehicle emissions estimates. The result will be improved air
quality and timely progress toward attainment of the NAAQS and other air
quality goals.
To better harmonize timelines, conformity analyses on the TIP and the RTP
should be synchronized and conducted no less frequently than once every three
years.
In addition, the 18-month SIP trigger for determining conformity must be maintained.
Planning Horizon
The 20-year planning horizon for transportation plans must also be retained. Such
long-range planning is imperative to ensuring that the potential for growth in
mobile source emissions is identified, the impact on air quality is assessed and
adjustments to transportation plans are made accordingly.

Mr. OTTER. Thank you very much. Mr. Replogle.

STATEMENT OF MICHAEL REPLOGLE

Mr. REPLOGLE. Yes. Thank you, Mr. Chairman. I am Michael

Replogle, and I am Transportation Director of Environmental Defense, representing our 400,000 members.
Despite progress in cleaning up air pollutions, half of all Americans still live with dirty air. This pollution exacts a real toll, contributing to asthma, lung cancer, heart disease, and tens of thousands of premature deaths, at the cost that the Federal Highway
Administration has estimated at more than $40 billion a year,
more than the entire Federal transportation budget. I include in
my testimony a summary of recent studies on these health effects.
Even tomorrows cleaner cars and trucks will emit a large portion
of the smog-causing pollutants, and remain a leading source of air
pollution for years to come, and that is because Americans are driving more and more.
Conformity is a key tool that helps us to control the pollution
that contributes to these programs. It helps us keep unanticipated
growth in traffic and pollution from motor vehicles from causing re-

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gional air pollution control strategies to fail, as has happened repeatedly in the past. Conformity has also spurred broader political
support for cleaner vehicles, fuels, and maintenance programs,
strategies that have helped to curb traffic and pollution growth,
with better travel choices.
Proposed changes to conformity threaten to undo this progress,
and to weaken a key tool designed to help State and local air pollution officials manage vehicle emissions on a long term basis. The
result will be that air quality will deteriorate, and there will be
fewer options for controlling pollution. Not only will the health of
our citizens suffer, but other sources, at greater cost, may be forced
to implement emission reductions that proper transportation planning could have avoided.
We urge you not to upset the existing clean air and public health
protections built into our transportation programs. Both H.R. 3 and
last years Senate transportation bills include provisions that weaken these protections, although in most cases, H.R. 3s provisions
are less damaging. The most preferable action Congress can take
is to reaffirm the existing law with no changes. We urge you to reject any efforts to add new provisions that would weaken clean air
protections during the conference negotiations.
A Senate proposal to cut the conformity analysis horizon for
transportation plans from 20 to 10 years would allow officials to ignore, until it is too late, the growth of air pollution set in motion
by developing new highways, which often take more than a decade
to be fully seen. In 15 years, only six metro areas have faced problems meeting the 20-year test, and in every case, added long-term
pollution controls, or changing transportation plans, has solved
these problems. The only reason to change this planning horizon
for conformity would be to disregard the long term consequences of
added roads to force other sources, like the electric utility industry,
or the auto industry, to incur the costs of correcting those consequences.
H.R. 3 is less damaging than the Senate proposal, because it
would continue the 20-year requirement, except in areas where the
metropolitan planning organization and air pollution control agency agree that the horizon, which agree to reduce the horizon, and
that allows local needs to be taken into account, and other safeguards to be adopted.
The Senate proposal would also narrow the scope of conformity,
so it would apply only to regionally significant projects, rather than
to the entire transportation program and plan. It would exempt
smaller projects from requirements to consider local pollution hot
spots and cumulative impacts. It would allow large investments in
polluting projects during a conformity lapse, worsening the violation of emission budgets. Thankfully, H.R. 3 has no counterpart
provision. A Senate proposal would also allow transportation agencies to modify transportation control measures and SIPs without
oversight from environmental agencies, weakening the integrity of
those SIPs, and leading to their failure. H.R. 3 corrects some of
those deficiencies.
Current law requires updating conformity for areas with
unhealthful air quality every 3 years for long range transportation
plans, which matches and synchronizes with the 3 year milestone

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compliance demonstration requirements, by which EPA can ensure
timely updates to air quality plans. The Senate bill and H.R. 3 propose a 4-year cycle, and H.R. 3 would add to this a 1-year grace
period before conformity lapse takes effect. These changes would
undermine timely awareness and action to correct conflicts between
transportation and air quality plans, contributing to more missed
clean air deadlines.
Another Senate provision would set aside current limits on motor
vehicle emissions in areas that violate the national ozone standard.
Current emission budgets for these areas were approved by EPA a
few years ago. The bill would not require new limits on motor vehicle emissions in these areas until new pollution control plans are
submitted by the States to implement the new, more stringent
ozone standard. And that is years off. According to EPA, that
delay, when no emission budgets would be in effect, could allow
motor vehicle emission increases of 10 to 50 percent above the current levels allowed. EPA concluded in a recent rulemaking that
these large increases in emissions could prevent an area from ever
meeting the new national health standard.
And finally, conformity has fallen short in one of its goals, and
that is to encourage transportation plans to contribute to more
timely attainment of healthful air quality. But there are regions
that have shown progress in this area, and are finding ways to reduce pollution at no cost through better community designs that
minimize traffic growth while maximizing travel choices. Salt Lake
City, Sacramento, Denver, and Charlotte, and others, have recently
built on the early success of Portland, Oregon in this area.
Recent reports by the Center for Clean Air Policy discuss some
of the best practices and offer useful suggestions for how to improve clean air and transportation planning. I include these in my
testimony, and commend these for your consideration.
Thank you.
[The prepared statement of Michael Replogle appears at the end
of the hearing.]
Mr. HALL. I thank you, sir. The Chair recognizes Mr. Holmes.
STATEMENT OF BRIAN HOLMES

Mr. HOLMES. Mr. Chairman. Mr. Chairman, Ranking Member

Boucher, I am Brian Holmes of the Maryland Highway Contractors
Association, here today on behalf of the American Road & Transportation Builders Association. We appreciate this opportunity to
discuss the Clean Air Act transportation conformity provisions of
H.R. 3.
At the outset, please know that we share your interests in assuring that all Americans breathe clean air. We believe the conformity
provisions in H.R. 3 are an important step in reaching that goal.
Conformity is of critical importance to the transportation construction industry, which is why, over the past 5 years, ARTBA has
been heavily involved in supporting government agencies in conformity related litigation.
Mr. Chairman, there are two points I hope the subcommittee will
take away from todays hearing. First, government agencies and
planning bodies need more flexibility on conformity. And second,
the public, including those who build transportation projects for

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government agencies, need more predictability in the transportation conformity process.
Right now, the conformity process is not flexible. Some have tried
to turn it into an exact science, which it is not. Conformity determinations are based on assumptions and computer modeling. Look
what happened when the Mobile Five model was replaced by the
Mobile Six model. Most emissions were projected to decline, but
there was an initial bump-up that threw a number of jurisdictions
into nonattainment. As in any case where the margins of error can
exceed the changes you are attempting to measure, there needs to
be some leeway given to State and local governments. The process
also has been made more rigid over the last 10 years by litigation
brought by those opposing specific projects, or the notion of increased highway capacity.
H.R. 3 addresses these concerns, and we strongly support its proposals. H.R. 3 improves the flexibility of transportation conformity
in the following areas, new triggers for conformity determinations,
and conformity determination updates, time horizons for conformity determinations in nonattainment areas, and substitution of
transportation control measures for conformity determinations in
State implementation plans.
H.R. 3s 12-month grace period for existing projects in areas that
have fallen out of attainment will allow already approved, environmentally sound projects to continue while State and government
State and local governments take actions to return to attainment.
This application of flexibility and common sense is to be commended. Abruptly halting transportation projects after a finding of
nonattainment is both costly and inefficient. The 1 year grace period will also cut down on lawsuits designed to delay and ultimately halt needed projects. The goal of H.R. 3s grace period could
be additionally furthered by grandfathering, or the creation of
other safe harbors for projects.
Conformity must be forward looking. Once a transportation
project is in a conforming plan, it should be permanently grandfathered until it is either built or removed from the plan. Legislation to do that was introduced last Congress by Representatives
Brady and Green, and cosponsored by Chairman Hall, along with
others on this subcommittee. ARTBA urges Congress to introduce
and pass that bill, H.R. 673, the Safe Highways and Roads Act. It
is much needed legislation.
Fully supporting the reforms in H.R. 3, ARTBA invites the subcommittee to consider 3 measures to further improve the transportation conformity process. First, areas transitioning to new air
quality standards should be allowed to use their existing motor vehicle emissions budgets until new emissions budgets are available.
This avoids the need for project-specific conformity determinations,
allows progress without unnecessary delay, and maintains adherence to existing environmental safeguards. This provision was contained in Senate 1072, SAFE-TEA, as passed by the Senate last
session, and it deserves another look now.
Second, the gestation process for a highway project is so long and
involved that there is a need for protection from unnecessary lawsuits in areas such as seeking judicial review of motor vehicle emission budgets. Also, when lawsuits do arise, there should be equal

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participation for all interested parties, including contractors and
transportation users. Third, the subcommittee might wish to consider a diesel retrofit program for diesel-powered construction
equipment.
Mr. Chairman, Ranking Member Boucher, members of the subcommittee, ARTBA appreciates this opportunity to present testimony on this much needed legislation, and I look forward to answering any questions.
[The prepared statement of Brian Holmes follows:]
PREPARED STATEMENT OF BRIAN HOLMES, EXECUTIVE DIRECTOR, MARYLAND HIGHWAY CONTRACTORS ASSOCIATION ON BEHALF OF THE AMERICAN ROAD & TRANSPORTATION BUILDERS ASSOCIATION
Introductory Remarks
Good afternoon Mr. Chairman, Ranking Member Boucher and members of the
Subcommittee. Thank you very much for providing the American Road & Transportation Builders Association (ARTBA) with the opportunity to present its views on
the transportation conformity process and reform provisions related to it in H.R. 3,
The Transportation Act: A Legacy for Users.
I am Brian Holmes, executive director of the ARTBA affiliated Maryland Highway
Contractors Association (MHCA). Prior to joining MHCA, I served 13 years as director of regulatory affairs for the Connecticut Construction Industries Association,
also an ARTBA state affiliate. I am also privileged to serve as chairman of the Nationwide Public Projects Commission.
I am here today representing ARTBA, whose eight membership divisions and
more than 5,000 members nationwide, represent all sectorspublic and private
of the U.S. transportation design and construction industry. ARTBA, which is based
in Washington, D.C., has provided the industrys consensus policy views before Congress, the Executive Branch, federal judiciary and the federal agencies for 103
years.
The transportation design and construction industry ARTBA represents generates
$200 billion annually to the nations Gross Domestic Product and sustains the employment of more than 2.5 million Americans.
I would like to say at the outset that ARTBA shares your interest in assuring that
all Americans breathe clean air. We are not here today to suggest a radical overhaul
of the conformity process. We would, however, like to suggest some badly-needed
fine-tuning of federal law that will not only improve public health from a clean
air perspective, but also improve the efficiency of making environmentally-sound
and needed transportation investments.
General Background on the Clean Air Act and the Transportation Conformity Process
Under the federal Clean Air Act, the U.S. Environmental Protection Agency (EPA)
regulates six criteria pollutants: ozone, carbon monoxide, nitrogen dioxide, sulfur dioxide, particulate matter (also known as soot and dust) and lead. For each pollutant,
EPA has established minimal targets known as the National Ambient Air Quality
Standards (NAAQS) that must be met by state and local governments.
If an area exceeds EPAs standards for any one of these criteria pollutants, it
is designated a nonattainment area, triggering a series of steps that must be taken
to come into compliance with the standards. In addition, for ozone, carbon monoxide
and some particulate matter nonattainment areas, the EPA further classifies the
area based on the magnitude of the nonattainment. These classifications are used
to specify what pollution reduction measures must be adopted for the area and what
deadlines must be met to bring the area into attainment.
Once an area is designated as nonattainment, the state must establish a State
Implementation Plan (SIP) outlining how the state will come into compliance with
EPA standards over a designated period of time. The SIP includes an emissions
budget that shows allowable levels of emissions from three separate sources. They
are stationary sources (i.e., power plants, factories), area sources (i.e., dry cleaners,
gas stations) and mobile sources (i.e., cars, lawnmowers). The mobile source portion
of the emissions budget is further subdivided to include a Motor Vehicle Emissions
Budget (MVEB), which is the total emissions allowed for cars and trucks. Once this
number is known, metropolitan planning organizations (MPOs) are charged with
putting together both short-term Transportation Improvement Programs (TIPs) and
long term Regional Transportation Plans (RTPs) that demonstrate projected emis-

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sion that are less than the MVEB. Thus the TIP and RTP must fit within the constraints established by the SIP.
The transportation conformity process refers to the requirement set forth in Section 176 of the Clean Air Act that air emissions generated by transportation projects
match or conform to emissions budgets established in state air quality plans. If
the TIP does not conform with the SIP, the area is deemed to be out of conformity.
If an area is out of conformity, federal highway funds are cut off. As a result, an
areas TIP cannot include highway or transit transportation construction projects
that will accommodate transportation anticipated to result in emissions that exceed
the MVEB.
Transportation Sector Successes in Achieving Cleaner Air
Mr. Chairman, theres no doubt that we have made great progress over the past
30 years in improving the nations air quality. Much of this progress has been
achieved through technology advancements spurred by motor vehicle emissions
standards and controls and cleaner motor fuels. According to a report recently released by the Environmental Protection Agency entitled Air Emissions Trends,
Continued Progress Through 2003, emissions from highway vehicles were dramatically reduced between 1970 and 2003. Specifically, carbon monoxide emissions were
reduced by 64 percent, volatile organic compoundsa precursor to ozonewere reduced 74 percent, particulate matter (PM-10) emissions declined 61 percent, and nitrogen oxide (NOx) emissions went down by 42 percent. These numbers are even
more remarkable given that since 1970, the U.S. population has grown more than
39 percent, the number of licensed vehicles has increased about 90 percent and the
number of vehicle miles traveled has increased 155 percent.
In addition, earlier this year, major automobile manufacturers announced a new
generation of vehicles that are 99 percent cleaner than vehicles produced 30 years
ago. This reduction in emissions comes from a four-part strategy that includes
cleaning up the fuel as it goes into the vehicle, burning the fuel more precisely in
the engine, removing undesirable emissions with a catalyst after the engine, and
monitoring all of these systems to ensure these minimal emission levels.
So you can see, Mr. Chairman, much of the progress that has been made in improving the nations air quality, has come from the transportation sector.
Problems with the Conformity Process
Mr. Chairman, that leads me to my comments about the conformity process itself.
There are two things I hope you take from this hearing today: (1) that government
agencies and planning bodies need more flexibility on conformity; and (2) that the
publicespecially those who contract with government agencies to build transportation improvement projectsneed more predictability in the transportation conformity process.
One of the major problems with the conformity process is that some have tried
to turn it into an exact science, when it is not. Conformity determinations are based
on assumptions and computer modeling. All you have to do is to look back at the
predictions made during the enactment of the Clean Air Act Amendments of 1990
to understand that modeling of future events often does not reflect reality.
An example of this is EPAs transition from the Mobile5 model to the Mobile6
model for predicting future on-road emissions. In applying the new Mobile6 model
to current data, regions are experiencing a substantial short-term increase in predicted emissions for some pollutants as compared to the Mobile5 model. While over
the long term the Mobile6 model shows decreasing emissions, this could cause substantial problems for many areas and threaten a potential conformity lapse in the
short term. Even though the data being entered into the models is the same, each
shows significantly different outputs.
This problem is amplified by the fact that quite often transportation plans and
the SIPs they are supposed to conform with are often out of sync with one another.
This is largely due to the fact that transportation plans have very long planning
horizons and have to be updated frequently, while most air quality plans have very
short planning horizons and are updated infrequently. As a result, many of the
planning assumptions that must be used for conformity determinations of transportation plans and programs are not consistent with the assumptions that were used
in the air quality planning process to establish emissions budgets and to determine
appropriate control measures. In other words, because the most recent planning
data must always be used, an increase in emissions and possible conformity lapses
can occur simply because the numbers or models relied on in the transportation
plan are not the same numbers relied upon in the air quality plan.
Part of this is due to the fact that the priority of various transportation projects
often changes and every time this occurs, the plan needs to be updated.

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While many have suggested that the planning horizons should be brought more
in sync with one another, another option would be to simply allow greater flexibility
in the process, recognizing the inexact science involved.
Rather than requiring plans to conform to the nth-degree, perhaps a 10 percent
cushion should be allowed so that transportation planners would not have to
amend their plans every time they want to add or subtract even a relatively insignificant project.
Such a cushion would also permit some differences in planning data or models
and would allow a margin of error for modeling assumptions planning organizations
make but have no real way of predicting with precisionsuch as economic growth
or the current price of gasolineeven though such things have a substantial impact
on future travel or the use of larger vehicles like SUVs.
Very few conformity lapses occur because a region has a major clean air problem.
They occur because one of the parties involved cannot meet a particular deadline.
As a result, the conformity process has become a top-heavy bureaucratic exercise
that puts more emphasis on crossing the ts and dotting the is rather than engaging the public in true transportation planning that is good for the environment and
the mobility of a regions population.
Opening the Door to Unnecessary Litigation
Mr. Chairman, flexibility in the conformity process also has been constrained by
litigation initiated over the past several years by parties opposed to individual
transportation projects and/or the concept of increasing highway capacity. This litigation will only increase in light of the recently enacted EPA requirements for PM2.5 and ozone.
In 1997, in Sierra Club v. EPA, the court said EPA could not continue the practice
of allowing areas that are new non-attainment areas to have a one-year grace period
before they need to perform a conformity test. In yet another court case in 1999 (Environmental Defense Fund v. EPA), the court struck down EPAs practice of
grandfathering projects when a conformity lapse occurs. Up to this point, when an
area went into a conformity lapse projects could proceed if they had already met
all of the necessary environmental requirements and were part of a conforming
transportation plan at the time of the lapse. In defending its own rule before the
court, EPA stated:
EPAs rule reflects its rational judgment that Congress intended a more reasoned approach to transportation planning during periods in which there is no
applicable SIP, that Congress intended that there be an attempt to balance the
general pollution-reduction requirements of the Act with the needs of state and
local planning organizations for certainty and finality in their transportation
planning process.
42 U.S.C. 7506(c)(2). [EDF v. EPA, Case No. 97-1637, Respondents Brief, June 10,
1998, p. 30.]
EPA explained that it has always believed that there should only be one
point in the transportation planning process at which a project-level conformity
determination is necessary. This maintains stability and efficiency in the transportation planning process.
[EDF v. EPA, Case No. 97-1637, Respondents Brief, June 10, 1998, p. 36.]
Two other long-standing practices have also been struck down by the courts,
which has reduced flexibility in the conformity process and deserve this subcommittees attention:
EPA is often not able to approve a states motor vehicle emissions budget in time
for a conformity determination to be made. Prior to the EDF v. EPA case mentioned above, these budgets were assumed to be automatically approved if EPA
did not act within a certain period of time. That decision, however, struck down
this long-standing practice.
Many states have not been able to meet their ozone compliance deadlines since
much of their clean air problem is the result of ozone drifting in from other
areas, known as ozone transport. In the past, EPA has granted extensions to
the deadline in some of these areas. However, in Sierra Club v. EPA (D.C. Cir.
2002), the court ruled that EPA does not have the authority to grant these extensions and must, instead, bump these areas into the next higher classification of nonattainment, which would trigger several additional mandatory control measures.
Without the flexibility option of grandfathering projects, we have seen a significant increase in conformity-related litigation. Those opposed to an individual
projector the mix of projects or modal funding in a transportation planhave been
given tremendous leverage by the EDF v EPA decision. They can now use conformity-related litigation as a sure way to temporarily, if not permanently, stop pre-

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viously approved, environmentally sound projects and plans. Threatened with such
litigationor actually sued over conformity process-related issuesstate and local
planning agencies are put under enormous pressure to either give into the demands
of the dissenting minority, or face endless rounds of litigation.
In response to this reality, ARTBA joined several other industry groups in 1999
to form Advocates for Safe and Efficient Transportation (ASET), a litigation group
aimed at assisting governmental entities in defending the transportation planning
and delivery process. While many of the professional environmental groups talk a
lot about wanting a more inclusive transportation planning process, the fact of the
matter is really quite different.
Since ASET was formed, it has spent hundreds of thousands of dollars, not in arguing the merits of many of these cases, but in battling with environmental groups
over simply trying to get a seat at the table. I could provide you a pile of court briefs
where groups like the Sierra Club argue adamantly that the construction labor organizations and industry should not have a say in the final decision about transportation plans. The truth is that the Sierra Club and many of their colleague organizations do not want an inclusive planning process. They want a process where they
and they alone are allowed to influence the process.
When the planning process is allowed to be hijacked by any one individual group,
bad decisions are made. The truth is that America needs a dynamic transportation
network to meet the needs of a growing population and economy. Such a network
should include improving public transit, increased utilization of synchronized traffic
signalization and other smart road technologies, improving local management of
traffic incidents to clear roadways quickly and adding road capacity where appropriate and desired by a majority of local citizens. This is key to reducing traffic congestion and the unnecessary auto, truck and bus emissions it causes. It is also essential to maintaining time sensitive ambulance, police and fire emergency response
service.
On a related front, the Sierra Club recently initiated litigation which has temporarily halted a desperately needed highway improvement project on U.S. 95 in Las
Vegas, Nevada. ARTBA, realizing the far reaching implications of this litigation
filed a friend of the court brief supporting the United States Department of Transportation in the case. 1This type of litigation demonstrates that professional environmental groups will use any legislative loophole available to delay desperately
needed transportation construction process. These actions on the part of the professional environmental community further show that the transportation planning
process needs to be insulated from needless litigation.
Mr. Chairman, I believe very strongly in the transportation planning processa
process that involves public involvement by all stakeholders and final decisions that
are made by public officials. However, we have come to a point where the planning
process is breaking down under a mound of litigation.
The Human & Economic Costs of Delaying Transportation Improvements
Mr. Chairman, there are several very important reasonsoften missing from the
debatefor making sure that the transportation conformity process is reformed to
limit its use by those whose aim is simply to obstruct transportation development:
Unnecessary delays thrown in the way of transportation projects delay infrastructure improvements that can cut the harmful emissions and billions of dollars
in wasted motor fuel caused by traffic congestion.
Such delays drive up the ultimate construction cost for the project to the taxpayer. In this case, time certainly is money.
Most importantly, however, they delay the initiation of infrastructure improvements that can save lives and prevent injuries. With more than 42,000 Americans dying each year on the nations roadways, that should be a primary consideration. The fact is, one third more people die each year in motor vehicle crashes than die of bronchitis and asthma combined. Motor vehicle crashes are the
leading cause of death of young Americans under the age of 25.
CHANGES TO THE TRANSPORTATION CONFORMITY PROCESS IN THE TRANSPORTATION
EQUITY ACT: A LEGACY FOR USERS (H.R. 3)

Mr. Chairman, provisions in H.R. 3 concerning transportation conformity address

a number of the problems associated with the process and we strongly support these
proposals.
Conformity Redeterminations
Section 1824(a) of H.R. 3 extends the requirement for new conformity determinations resulting from an EPA finding of adequacy or approval of a new MVEB to two

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years. This is an improvement over the current regulations which require conformity determinations within 18 months. Again, this is a positive step.
Beyond this, what is needed is MVEB adequacy and regulatory flexibility. A 1999
court ruling struck down an EPA rule that conferred automatic MVEB approval if
EPA did not act promptly and called into question EPAs overall process for approving MVEBs in submitted-but-not-yet-approved SIPs. Conformity obligations often
arise with short notice due to changes in attainment status or failure of EPA to
timely approve MVEBs or SIPs. Without an approved MVEB, conformity determinations cannot be found and transportation projects cannot be approved.
Frequency of Conformity Determination Updates
Section 1824(b) of H.R. 3 extends the timeline for determining conformity to every
four years with all too frequent exceptions when an MPO chooses to update the plan
or TIP more frequently or when SIP actions trigger a new conformity determination.
This is an improvement over the current law, which requires conformity determinations every three years.
By extending the timeframe for conformity determinations, H.R. 3 cuts down on
unnecessary requirements that do not have any analytical value unless there has
been a major change in emissions.
Another method of dealing with this issue would be to require conformity updates
only in instances where a changed TIP affects projected emissions by more than a
set threshold amount.
A new conformity determination should not be required if one or several projects
are added to the transportation plan or TIP, as long as the net emissions from their
inclusion will not add more than three percent to projected transportation emissions
in the plan. In reality, added transportation emissions that might be facilitated by
a single highway project are minuscule. This would avoid what is largely a paperwork exercise.
Conformity determination should not be done simply for its own sake. It is a very
intensive and rigorous process. Rather, it should only be required only when significant changes to the TIP warrant. H.R. 3, by extending the time frame for conformity
determinations, is a good step in this direction.
Time Horizon for Conformity Determinations in Nonattainment Areas
Section 1824(c) of H.R. 3 limits conformity to the end of the maintenance period
provided that the MPO and air quality agency agree. the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2004 (S. 1072) as passed by the Senate last session, did not contain the requirement that the MPO and air quality agency agree. This is a more efficient approach, as there should not be a need for the
agreement of the MPO and the air quality agency here. If the maintenance period
has ended, then conformity determinations should no longer be required. By tying
this decision to the agreement of the MPO and air quality agency, this provides an
unwelcome opportunity for extension of the conformity requirements when they are
no longer needed.
Section 1824(c) of H.R. 3 further provides that, in general, conformity findings
must be based on the last (20th) year of transportation plans. It allows, with agreement of the MPO and applicable air quality agency, conformity findings to be based
on the latest date of the 10th year of the transportation plan, the attainment date
of the SIP, or the year after the completion date of a regionally significant project
(if approval is required before a subsequent conformity determination). Regional
emissions analysis must be done for the remaining years of the transportation plan.
While this enhanced flexibility is positive, H.R. 3 does not include provisions allowing for the imprecision of data inputs to be appropriately accommodated. As stated above, modeling is an inexact science at best. Requiring conformity to be demonstrated to the nth decimal point makes little sense from a public policy standpoint. We recommend that, conformity should be allowed to be demonstrated if the
emissions from the transportation plan are at least within 10 percent of the emissions
budget. In addition, SIPs should contain an adequate margin of safety to avoid
conformity lapses due to marginal changes in expectations.
Substitution of Transportation Control Measures
Section 1824(d) of H.R. 3 allows the substitution of transportation control measures without a mandatory SIP revision under certain circumstances. This is a positive change that allows for alternate planning without triggering an unnecessary
SIP revision process.
Lapse of Conformity
Section 1824(e) of H.R. 3 provides that conformity lapses will not take effect
until 12 months for projects approved prior to a finding that an area is not within

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conformity. This is a welcome relief from the rigidity of the conformity process allowing projects to continue while actions are taken to return to conformity. Abruptly
halting transportation projects after a finding of nonattainment is both costly and
inefficient. This reinstatement of the one-year grace period also will cut down on
unnecessary lawsuits designed to delay and halt vitally needed transportation
projects.
The goal of H.R. 3s grace period provision could be further accomplished by the
restoration of grandfathering or the creation of other safe harbors for projects. Conformity must be forward-looking. Retroactive invalidation of projects after funding
approval is counterproductive to smart growth and mobility considerations. Conformity lapses stop all projects, transit and highway alike, and puts construction
crews out of work without notice. Once a transportation project is in a conforming
plan, it should be permanently grandfathered until built or removed from the plan.
Legislation introduced last congress by Representative Kevin Brady (R-TX) and Representative Gene Green (D-TX), and cosponsored by Subcommittee Chairman Ralph
Hall (R-TX) and others this subcommittee, H.R. 673 The Safe Highways and Roads
Act, accomplished this goal.
The conformity provisions of H.R. 3 represent a significant step forward in improving the transportation conformity process.
ADDITIONAL CONFORMITY REFORM RECOMMENDATIONS FOR INCLUSION IN H.R. 3

While ARTBA fully supports the reforms contained in H.R. 3, the following measures should be considered in this legislation to further improve the transportation
conformity process:
Allow Use of Existing MVEBs to Demonstrate Conformity
Areas transitioning into new air quality standards should be allowed to use existing MVEBs addressing the same pollutants or other emissions tests to demonstrate
conformity before budgets are available. This avoids the need for project specific conformity determinations and allows the transportation process to proceed without unnecessary delay while adhering to existing environmental safeguards. This provision
was contained in the Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2004 (S. 1072) as passed by the Senate last session.
Prohibit MVEB Judicial Review
Under existing regulations, EPA can declare a MVEB adequate for transportation
planning purposes prior to approval of the entire SIP. This approval process is not
as comprehensive as full SIP approval and EPA reserves the right to withdraw its
approval at anytime (therefore, it is not a final agency action). Environmental
groups have filed lawsuits alleging that preliminary MVEB approval must be as rigorous as final SIP approval and EPA has not contested jurisdiction in these lawsuits. (i.e., 1000 Friends of Maryland suit against EPA).
Provide Further Protection From Lawsuits
Planners have to rely on current state-of-the-art modeling and good faith estimates to develop air quality and transportation plans. Environmental groups are attacking the estimates and demanding exactitude that doesnt exist.
A requirement on plaintiffs to make an initial showing of bad faith before filing
suit would allow only suits with some standard of merit to proceed. In the absence
of such a showing, agreement by the MPO, state air quality agency, EPA and U.S.
DOT should be per se evidence of the validity of emissions estimates. (Example: Sierra Club sued Sacramento for using EPA data). Almost 200 U.S. counties will face
conformity for the first time under the revised ozone and particulate matter standards. They will not be able to develop airtight plans immediately, thus opening
the door to lawsuits. These areas must be given adequate time (at least two years)
and adequate resources to develop the detailed databases needed to demonstrate
conformity. Smaller MPOs, in particular, are ill-prepared to fulfill all of the conformity requirements.
Ensure Private Sector Transportation Improvement Advocates Have Equal Intervention Rights
Environmental groups are using lawsuits to pressure policy makers and exclude
other stakeholders. Contractors and transportation users should have the right to
participate in lawsuits as equals to professional environmental groups. A double
standard leads to duplicative lawsuits and moves the planning process out of the
public forum and into the courtroom.

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Conclusion
Mr. Chairman, Ranking Member Boucher, and other members of the subcommittee, ARTBA deeply appreciates having this opportunity to present testimony
to you on this critical transportation issue. To summarize my comments:
The nation is making huge progress on cleaning up the air, but almost all of this
progress can be attributed to technology gains, not transportation control measures;
Greater flexibility and predictability is needed in the transportation planning and
conformity process;
H.R. 3 takes several positive steps towards achieving a workable transportation
conformity process that both benefits the environment and allows for needed
transportation development.
More must be done to put a stop to the endless litigation that is tying the transportation planning process into knots;
Delaying transportation improvement projects results in unnecessary deaths and
other negative costs to society.
Again, thank you. I look forward to any questions the Committee might have.

Mr. HALL. All right. I thank you very much. And I will start the
questions, and I would ask Mr. Clifford, you state that MPOs without conformity requirements are freer to undertake activities such
as scenario planning, enhanced public participation, and other innovative measures. How does being able to undertake these activities affect air quality goals and transportation planning?
Mr. CLIFFORD. Well, that is an example of some other planning
activities that represent good methods. The point we were trying
to make was we are spending possibly an inordinate amount of
time with some of the conformity activities, by the fact that we do
it throughout the year.
Mr. HALL. I am trying to find out if being able to undertake
these activities doesnt benefit both air quality goals and transportation planning.
Mr. CLIFFORD. Yes, sir. That is really what we meant by that,
to further the planning function.
Mr. HALL. Ms. Liebe, if I have read your testimony correctly, at
the bottom, you say that ideally, Congress should do nothing with
respect to conformity, but if it does, the House bill is better than
the Senate bill. It seems like someone has testified that the Senate
bill was better than the House bill. I dont want to get you into a
debate here, but kind of give us your reasons for saying that.
Ms. LIEBE. Thank you, Mr. Chairman. The reasons whythe
main reason we prefer the House version is the opportunity for air
quality agencies to participate in the decisionmaking on whether or
not emissions analysis is going to be conducted beyond the 10 years
that is currently called for in the Senate bill. The House version
allows that to be agreed upon only with the concurrence of the
State air quality agency, and we really think it is critical that you
look out 20 years, so that you can evaluate all of the future impacts
of the facilities, as you are making the decisions on where to put
your investment.
Mr. HALL. Mr. Replogle, did I say that right?
Mr. REPLOGLE. It is Replogle.
Mr. HALL. Okay. If I have read your testimony correctly, at the
bottom, you say that ideally, Congress should do nothing with respect to conformity. But if it does act, the House bill is better than
the Senate bill. You agree to that?
Mr. REPLOGLE. Yes. That is correct.

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Mr. HALL. And in your testimony, you complain, though, that the
Senate bill would reduce the planning horizon from 20 to 10 years.
Now, does the House bill maintain the 20 year planning horizon?
Mr. REPLOGLE. Yes, it does, except when both the State and local
agencies, and regional planning bodies all agree to you try and use
a shorter horizon. So there is some flexibility in the House bill to
adopt a shorter horizon, but in the default case, the 20 year planning horizon stays in place, and we think that that is preferable
to the Senates proposal.
Mr. HALL. And you have a Washington, DC example. Do I understand that example? Under existing law or under the law as
amended by H.R. 3, Washington, DC is a nonattainable area?
Mr. REPLOGLE. Washington, DC has been a nonattainment area
for decades, and has missed repeated clean air deadlines, in part,
because it has underestimated the growth of motor vehicle pollution, and the fact that under current law, the need to review the
transportation conformity every 3 years has, in fact, in the Washington region, just in the last several years, prompted additional
pollution reduction measures to be taken by Maryland and Virginia
and the District of Columbia, that has helped us to protect public
health. And if the changes that are proposed in H.R. 3 or the Senate bill werewould have been law, those pollution reductions
might not have been taken.
Mr. HALL. So what would it take to make the DC area an attainment area?
Mr. REPLOGLE. It will take additional steps to reduce pollution
from all sources, motor vehicles and power plants, and other
sources. There is a significant concern under the Senate bill that
the Washington region is likely to approve a lot of new transportation projects, which will make it, in the next several years, which
would make it far more difficult for the region to attain the health
standards that have been put in place.
Mr. HALL. I thank you. My time is up. The Chair recognizes the
gentleman from Virginia.
Mr. BOUCHER. Thank you, Mr. Chairman. And I want to express
appreciation to our witnesses for informing us of their views this
afternoon.
Your concerns have been well articulated here, and have been
duly noted by us. The recommendations that you have made for
changing the statutory language have been duly noted. I am not
going to dwell on that in my question. We face a practical problem,
and that is, the bill is going to the floor next week, and we need
to make some decisions about what we are going to do about the
matters we have discussed here today.
I perceive that each of you would probably prefer the House
version of this legislation to the Senate. Some of you would prefer
that we do nothing, that the Congress do nothing, and leave the
situation as it is, but that is not likely to happen. We are probably
going to have changes. I think you acknowledge that. And given
that reality, let me just ask each of you, and this can be a simple
yes or no, would you prefer the House version to the Senate
version? I would like to get each of you to respond to that.
We will start with you, Mr. Clifford. And a simple yes or no is
what I am looking for here.

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Mr. CLIFFORD. The House version.
Mr. BOUCHER. Thank you. Ms. Liebe.
Ms. LIEBE. The House version. I also want to throw in that I
really would like to recognize the work of this subcommittee, and
of your staff, in coming up with H.R. 3.
Mr. BOUCHER. Thank you very much. Mr. Replogle?
Mr. REPLOGLE. I will second the comments that Ms. Liebe has
just made, both preferring the House version, and commending the
staff for their work here.
Mr. BOUCHER. Thank you. Mr. Holmes?
Mr. HOLMES. We would prefer the House version. We believe the
provision for the 12-month grace period is particularly useful in
cases where there is poor synchronization between parallel programs.
Mr. BOUCHER. Well, thank you for those answers. I had assumed
that each of you would prefer the House version to the Senate
version. And I would also assume that you would encourage us to
go forward at this point, because if we do nothing, then the bill
goes into conference with the Senate version, which you do not prefer. I think you would probably prefer to have the House version
there, to put alongside the Senate version when the conference
takes place. Would all of you agree with that?
Mr. Clifford.
Mr. CLIFFORD. Yes.
Ms. LIEBE. Yes.
Mr. BOUCHER. Yes. Everyone agrees.
Mr. REPLOGLE. Yes.
Mr. BOUCHER. Okay. Well, you have been most agreeable witnesses. Thank you. That concludes my questions, Mr. Chairman.
And again, I want to thank you for sharing your time with us
today.
Mr. HALL. I thank you, and that will conclude our hearing, and
we do thank you, and dont have any pangs of anxiety about the
lack of members here, because as you see, this is taken down. It
will be given to every member, not just of this subcommittee, but
of the entire Energy and Commerce Committee, and the U.S. Congress. It is available to them. It is from these, this testimony, that
we will prepare and carry out the passage of this Act, and we are
going to pass it, I think, in the House.
I really thank all of you. Thank you for your patience, the time
it took you to get here, the time to go home, the time to prepare,
and for all the time you spent standing by here today. We really
appreciate it. You helped us an awful lot.
With that, we are adjourned.
[Whereupon, at 5:50 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
RESPONSE

FOR THE RECORD BY HON. CHARLES D. NOTTINGHAM, ASSOCIATE ADMINISTRATOR FOR POLICY, DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION
QUESTION FROM HON. CHARLES A. GONZALEZ

Question: Could you please clarify your understanding of the timeline governing
the opening of the U.S. border to NAFTA-related truck traffic from Mexico?
Anawer: I consulted with the Federal Motor Carrier Safety Administration
(FMCSA), which has provided the following response:

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A precise timeline cannot be specified at this time. In DOTs Fiscal Year 2002 appropriations act, Congress specified more than twenty conditions that needed to be
met before the Department could expend any funds for processing Mexican motor
carrier applications for operating authority beyond the border commercial zones.
Pub. L. 107-87, section 350. DOT satisfied the conditions of the appropriations act
in November 2002. Pursuant to our NAFTA obligations, the President shortly thereafter lifted the moratorium on long-haul Mexican truck and bus operations in the
United States and indicated his commitment to making access of commercial vehicles from Mexico to the full U.S. market a reality.
In March 2002, FMCSA published interim final rules for motor carrier applications and safety monitoring regulations for Mexican motor carriers seeking authority to operate beyond the border commercial zones, reflecting changes that were
made to comply with some of the conditions of section 350 of the FY2002 appropriations act.
Mexican officials have indicated that they view these stricter regulations as being
inconsistent with our NAFTA obligations. Consequently, the Department has been
engaged with our counterparts in Mexico to clarify the requirements, address any
concerns that may exist and determine how best to move forward with the implementation process. These discussions are ongoing, and no firm date has been established for their conclusion at this time.
U.S. Environmental Protection Agency
The Honorable RALPH M. HALL
Chairman, Subcommittee on Energy and Air Quality
Energy and Commerce
U.S. House of Representatives
Washington, D.C. 20515
DEAR CHAIRMAN HALL: Enclosed, for insertion into the hearing record, are the
U.S. Environmental Protection Agencys (EPA) responses to follow-up questions
from the March 2, 2005 hearing on the conformity provisions in H.R. 3. I hope this
information will be useful to you and Members of the Committee.
Thank you for providing EPA the opportunity to testify on this important issue.
Sincerely,
JEFFREY R. HOLMSTEAD
Assistant Administrator
Enclosure
QUESTIONS FROM THE HONORABLE RALPH M. HALL

1. Mr. Holmstead, according to your testimony, you state air quality monitoring
data show that from 1970-2003, concentrations of all six criteria pollutants have declined, including the four criteria pollutants that are most affected by the transportation sector: carbon monoxide, nitrogen dioxide, ozone (smog), and particulate matter soot. Can you state how the legislative provisions before us today will aid in further declining these four pollutants that most affect the transportation sector?
Response: While all of these pollutants are declining as a result of control programs, vehicle activity continues to increase. Conformity assures that transportation
activities do not result in increases in activity that would outweigh the pollution
control gains that we have achieved. The purpose of conformity is to ensure that
an areas planned transportation activities are consistent with or conform to the
motor vehicle emissions level established by the state air quality plan before such
activities can be federally funded or approved.
EPA did not perform quantitative analyses on the Administrations proposed legislation or for the proposed legislative changes discussed above. Specific local area information that would be required to perform such analyses does not exist. When
considering the targeted improvements to the conformity program proposed by the
Administration, however, EPA considered a wealth of qualitative information. Legislative changes that do not modify the underlying purpose of conformity ensure that,
on a regular basis, transportation planners demonstrate that emissions from the
areas transportation network are, and will remain, consistent with emissions levels
established in the areas air quality plan.
QUESTIONS FROM THE HONORABLE ELIOT ENGEL

1. Mr. Holmstead: I am very concerned about the increased incidence of asthma

and other respiratory diseases related to air pollution. I was interested to learn from
the testimony of one witness that a recent study in the Bronx, which I represent,

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shows asthma rates of one in three children, where the national rate is one in five
children. According to this study, not only is the asthma hospitalization rate 12 times
above the national average, but the very high levels of pollution (measured as carbon)
from diesel vehicles, appear to be associated with the very high asthma rates. Isnt
Clean Air Conformity part of the solution to this problem? What assurances can you
provide that the changes suggested by the Administration for changing this program
will not have negative air quality impacts? Do you have analysis to support your conclusions?
Response: EPA is also concerned about the high rates of asthma that exist in
many urban areas across the country and the role that diesel emissions play. That
is one reason EPA has championed both regulations and voluntary programs to reduce diesel emissions. We have set stringent emissions standards for both on-road
and off-road diesel vehicles and equipment. Additionally, we are aggressively pursuing voluntary diesel retrofit programs and anti-idling programs and providing
demonstration grants around the country, including in New York City.
Transportation conformity has played and will continue to play an important role
in ensuring that areas with poor air quality come into attainment of the national
ambient air quality standards and maintain compliance with those standards in the
future. The purpose of transportation conformity is to ensure that transportation
plans, programs and projects do not create new air quality problems, delay attainment of the air quality standards or make an existing air quality worse. Transportation conformity will continue to accomplish its purpose with the changes that have
been proposed by the Administration.
EPA did not perform quantitative analyses for the Administrations proposed legislative changes, nor is there specific local area information that would be required
to perform such analyses. When considering these targeted improvements to the
conformity program, however, EPA considered a wealth of qualitative information.
The legislative changes proposed by the Administration do not modify the underlying purpose of conformity which is to ensure that, on a regular basis, transportation planners demonstrate that emissions from the areas transportation network
are, and will remain, consistent with emissions levels established in the areas air
quality plan. By maintaining the underlying purpose of conformity, we are certain
that areas can move forward with conforming transportation plans, programs and
projects without causing new air quality problems, making existing problems worse
or delaying attainment of air quality standards.
2. I would also like to note that another study cited by a witness suggests that diesel exhaust may lead to developmental aberrations in children born to pregnant
women in upper Manhattan and the South Bronx. For obvious reasons, these studies
are very disturbing to me and my constituents. Are we sure that we can change the
conformity requirement to require less frequent planning looking at shorter time periods and still have no impact on air quality? What is the basis for such conclusions?
Isnt it equally possible that we should leave the Clean Air Act as it is and try harder
to clean the air, taking great care with the effects that road building has on air quality?
Response: EPA is working on many programs that will help address these types
of health effects on children born in urban areas. We are pursuing a number of options, both regulatory and voluntary in nature, to reduce diesel emissions. In addition to regulations addressing both on-road and non-road diesel emissions, EPA has
initiated several cooperative efforts including the diesel retrofit program, the Clean
School Bus USA program and the Smartway Transportation Partnership.
While we agree that we need to take great care with the effects that road building
has on air quality, we believe that we can make these changes to the Clean Air Acts
conformity requirements without a negative effect on air quality. Areas are still required to demonstrate that their transportation plans and programs are consistent
with their air quality plans. Under the Administrations proposal, areas cannot add
new regionally significant projects to transportation plans and programs until such
a demonstration is completed.
Changing the minimum frequency for conformity determinations responds to concerns raised by transportation stakeholders who indicated that they could prepare
better more comprehensive transportation plans if they were given more time between required plan updates and associated conformity determinations. As noted in
a April 2003 GAO report on transportation and air quality planning requirements,
a number of transportation planners indicated that having more time between required transportation plan updates and conformity determinations would allow
them to: address transportation concerns such as relieving congestion and ensuring
safety; think strategically about future alternatives for the transportation network;
develop modeling and technical skills; obtain better planning information; and bet-

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ter coordinate plans and projects with other agencies and stakeholders, such as local
land use agencies.
Changing the time period covered by conformity responds to concerns raised by
some transportation stakeholders that have indicated the disconnect between the
time periods covered by air quality plans, usually 10 years or less, and conformity
determinations, always at least 20 years, has caused unnecessary difficulty in demonstrating conformity in the past. We believe that the Administrations proposed
change to the period covered by conformity both addresses the concerns raised by
the transportation stakeholders while still requiring that they examine emissions
far enough into the future to gauge the impact of their current transportation decisions. Additionally, the Administrations proposal to require that each conformity
determination be accompanied by an emissions analysis for the last year of the
transportation plan provides an early warning to the area in the event that emissions may increase in the future. Such an early warning would give areas the opportunity to address potential problems now rather further in the future.
For all of these reasons, we believe these changes can be made to the Clean Air
Act without sacrificing air quality gains.
QUESTIONS FROM THE HONORABLE CHARLES A. GONZALEZ

1. One of the challenges that local transportation planners have faced in regards
to conformity is the mismatch between State Implementation Plans (SIPs) and
Long Range Transportation Plans (LRTP). LRTPs are 20-year planning documents,
while the SIPs timeframe depends upon the areas nonattainment status.
H.R. 3 contains provisions to address this mismatch. As Mr. Clifford will explain
in greater detail later this afternoon, H.R. 3 would do a better job at harmonizing
these two planning horizons than current law.
Building upon the improvements in H.R. 3, what steps will the EPA take to work
with the U.S. Department of Transportation to further synchronize the planning horizons required for EPAs air quality planning (namely, the State Implementation
Plans) and the Metropolitan Transportation Plans?
Response: Over the next few years, EPA will be working with DOT in the development of new State air quality implementation plans (or SIPs) for the 8-hour ozone
and PM2.5 national ambient air quality standards. Federal coordination is especially important when State and local governments choose to address horizons that
are longer than what the Clean Air Act requires to protect public health in order
to facilitate conformity determinations.
Additionally, EPA believes that flexibility is already provided by the Clean Air Act
to allow States to decide for themselves whether a SIP revision to incorporate a
longer horizon is necessary. States are in a better position to decide whether their
SIP should establish a longer horizon than what is required by the Clean Air Act.
Therefore, EPA would not want to require regular SIP updates or longer SIP horizons in areas where air quality improvements are occurring as anticipated by the
SIP and conformity determinations are being made without difficulty. Many existing
nonattainment and maintenance areas have been able to meet transportation conformity requirements without extending the horizons in their SIPs. Other areas
have chosen to establish longer horizons in their SIPs to facilitate conformity determinations. Some of these areas include Las Vegas NV, Portland OR, Salt Lake City
UT, Washington DC, and Albuquerque NM. We will continue to provide assistance
to State and local officials that need to develop longer SIP horizons for conformity
purposes.
In addition, EPA and DOT have established a national Memorandum of Understanding (MOU) that provides a mechanism for regular consultation between the
federal agencies on SIPs that are developed across the country. The MOU is intended to ensure the proper implementation of the transportation conformity rules
provisions through better and more efficient EPA and DOT consultation in order to
facilitate timely conformity and SIP decisions.
2. Could you please clarify your understanding of the timeline governing the opening of the U.S. border to NAFTA-related truck traffic from Mexico?
Response: The Department of Transportation (DOT) has authority to address this
issue. They have provided the following information in response:
A precise timeline cannot be specified at this time. In DOTs FY2002 appropriations legislation, Congress inserted provisions that attached more than
twenty conditions to the expenditure of funds on the processing of Mexican
motor carrier applications for operating authority beyond the border commercial
zones. DOT satisfied the conditions of the appropriations act in November 2002.
Pursuant to our NAFTA obligations, the President shortly thereafter lifted the
moratorium on long-haul Mexican truck and bus operations in the United

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States and indicated his commitment to making access of commercial vehicles
from Mexico to the full U.S. market a reality.
In March 2002, Federal Motor Carrier Safety Administration published interim final rules for its application and safety monitoring regulations for Mexican motor carriers seeking authority to operate beyond the border commercial
zones, reflecting changes that were made to comply with some of the conditions
of the appropriations bill.
Mexican officials have indicated that they view these stricter regulations as
being Inconsistent with our NAFTA obligations. Consequently, the Department
has been engaged with our counterparts in Mexico to clarify the requirements,
assuage any concerns that may exist and determine how best to move forward
with the implementation process. These discussions are on-going and no firm
date has been established for their conclusion at this time.
3. During the hearing, Mr. Holmstead discussed the concept that conversations
with the Mexican government are underway to work with PEMEX to provide lower
sulfur diesel fuel in the Mexican interior. He anticipated that such distribution
would begin on roughly the same timeline as federal mandates in the United States
for Ultra Low Sulfur Diesel (ULSD). What are the likely fuel specifications for the
Mexican low sulfur diesel?
Response: We understand that ULSD fuel being contemplated in Mexico will be
comparable in terms of component specifications to the fuel being introduced in the
United States, with appropriate changes to reflect the Mexican market. In terms of
emissions benefits, the sulfur content is the critical specification given its impact on
advanced exhaust aftertreatment technologies as well as direct particulate matter
reductions associated with lower sulfur levels.
4. It is not clear that simply providing low sulfur diesel fuel in the Mexican interior will reduce NOx emissions in existing engines. The United States ULSD does
not provide important NOx reduction benefits when used in current heavy-duty diesel
engines. Rather, ULSD does provide important NOx reductions when used in heavyduty diesel engines which are fitted with NOx reduction hardware requiring low sulfur diesel.
On the other hand, Valero produces a diesel fuel product, TxLED, which qualifies
as a ULSD and provides extra NOx reduction benefits when burned in existing
heavy-duty diesel vehicle engines. If the Mexican low sulfur diesel fuel blend envisioned by PEMEX were blended to ULSD specifications, it may not perhaps produce
meaningful NOx reductions in any trucks save those, for example, meeting US specifications consistent with US federal standards for heavy-duty highway engines and
vehicles, to take effect by 2007 (2007 Heavy-Duty Highway Final Rule). Note that,
in this case, such low sulfur diesel fuel sold in Mexico would allow penetration by
US trucks fitted with advanced NOx reduction technologies; such vehicles could refuel in the Mexican interior without fowling their low NOx hardware. This would
help open Mexico to travel by these advanced heavy-duty diesel trucks. If the Mexican
low sulfur diesel fuel envisioned by PEMEX were blended to specifications like those
of TxLED to provide NOx reduction benefits when used in all existing engines, such
fuel would both open the Mexican interior to advanced cleaner trucks without fowling
their low NOx hardware and provide immediate NOx reduction benefits when used
as a fuel in all existing trucks.
If PEMEX does produce a low sulfur diesel, what is the extent of the distribution
region in Mexico and the likely timeline for implementation?
Is there now a forum for discussion of such border affairs that could include our
local governments and other entities involved in clean air planning?
Response: The sulfur content of diesel fuel has a primary impact on engine-out
emissions in its relationship to forming particulate matter, with reductions in sulfur
leading to lower particulate matter levels. As you noted, the primary NOx benefits
associated with ULSD are tied to the effectiveness of NOx aftertreatment technologies, which is maximized when sulfur poisoning due to fuel sulfur content is
kept at 15 ppm or lower levels. We do note that the conventional refinery processes
that reduce the sulfur content of diesel tend also to increase its cetane number
slightly. Increased cetane number has been correlated with lower NOx emissions.
Thus, ULSD could indirectly produce some small NOx reductions in existing engines.
TxLED (Texas Low Emissions Diesel fuel) is modeled on the California diesel fuel
program, and in general would have higher cetane, lower density, and lower aromatics than conventional diesel found elsewhere in the U.S. If it also has sulfur at
or below 15ppm, it may also qualify as ULSD. This fuel is estimated to produce NOx
benefits of approximately 5% for pre-2007 model year engines, as a result of its cetane, density, and aromatics levels. As new engine standards phase-in, these benefits are expected to decrease.

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It is our understanding that Mexico is seriously contemplating introduction of
ULSD fuel nationwide, on a schedule at least a year later than it is introduced in
the United States. A final determination on the fuel implementation schedule in
Mexico has not been made.
The U.S.-Mexico Border 2012 Environmental Program created the Air Policy
Forum to focus and concentrate on broad policy issues which require an ongoing dialogue between both countries. The Air Policy Forum is chaired by a Deputy Assistant Administrator from EPAs Office of Air and Radiation as well as the Director
General of Air Quality Management and the Pollutant Registry from Mexicos environment ministry (SEMARNAT). Policy Forums, under the Border 2012 program,
may elect to address policy issues through Task Forces and/or project-level efforts.
Currently there are several local Task Forces in the border region meeting on a regular basis. These binational meetings afford the opportunity for local, state, tribal
and federal representatives to participate in meaningful dialogue on air quality
planning and management issues. Additionally, the Air Policy Forum has recently
convened two stakeholder-based meetings to discuss a broad set of air quality issues
in the border region. These forums have been an effective venue to address and discuss a host of air quality related issues, including the distribution and use of lower
sulfur diesel fuel. For more information about the Air Policy Forum, including Task
Force meetings, please go to www.epa.gov/border2012.
QUESTIONS FROM THE MARCH 2, 2005 HEARING

Congressman Gonzalez asked Mr. Holmstead for a date when the Nogales bordercrossing truck study would be completed.
Response: On March 10, 2005, EPA announced that they would provide $200,000
to test air pollution emissions from trucks along the U.S. - Mexico border near
Nogales, Ariz. The air quality testing will begin around March 14 and take approximately three weeks. Once the data has been collected it will take approximately five
months to assess the data and prepare a report. A final report is expected in August
2005. We will be happy to provide a copy of the final report when it is available.
Congresswoman Solis asked Mr. Holmstead what has EPA done to reach out to
under-served communities with regard to air quality issues and transportation conformity?
Response: EPA is committed to ensuring that the transportation conformity program continues to be implemented effectively in all areas of the U.S., including
those areas with under-served populations. We believe the Administrations proposal
for the reauthorization of TEA-21 includes changes to the conformity program that
will yield better transportation and air quality results in all areas with air quality
issues by allowing more reasonable period for planning and decision-making. Furthermore, we have and will continue to be committed to providing timely training
opportunities and technical assistance to both nonattainment and maintenance
areas.
For example, EPA, along with the Department of Transportation, have provided
timely guidance and training to new ozone and fine particulate matter nonattainment areas before and as they implement the conformity program to support effective implementation. After the July 1, 2004, conformity rule addressing the new air
quality standards was published, EPA conformity staff held a road show to explain
the requirements of the rulemaking. Each EPA Region invited all the transportation
and air quality agencies in their jurisdiction to attend these presentations. The
training sessions were well attended by state and local air quality and transportation representatives, mostly from non-attainment areas. EPA also conducted a
tele-video conference as a means to allow those unable to attend the other sessions
(due to lack of resources or scheduling conflicts) another opportunity to learn about
the new conformity requirements. In the near future, EPA will offer additional
training on the conformity requirements for fine particulate matter.
Additionally, EPAs Office of Transportation and Air Quality is conducting a
project in Baltimore with the Baltimore Urban League, Baltimore Metropolitan
Council, the National Transportation Center at Morgan State University, and other
stakeholders to help identify and develop practices and tools to undertake a comprehensive analysis of environmental justice and transportation-related issues in
the Baltimore region. The goal of this project is to integrate environmental justice
into transportation planning as an on-going and daily activity with meaningful community involvement throughout the process.
All Americans deserve to be protected from pollution. However, EPAs Office of
Air and Radiation (OAR) recognizes that, in some instances, minority and low income communities face a higher level of environmental risk than the majority population. Therefore, OAR is committed to addressing this issue by incorporating envi-

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ronmental justice into its activities and decision-making. The Offices goal is to
achieve environmental justice by decreasing the burden on environmental risks to
all communities as a result of improved air quality.
OAR currently has an Environmental Justice Action plan that is designed to support efforts to develop and implement strategies and activities to integrate environmental justice into existing programs, to further highlight the valuable work we
continue to do in the area of environmental justice, and to develop a more coordinated environmental justice implementation strategy. As part of this plan, OAR has
provided funding for a number of specific air quality projects which have environmental justice-related issues. These programs are part of EPAs National Clean Diesel Campaign. Examples of such projects include:
Diesel Retrofit Program. This Program is a non-regulatory, incentive based, voluntary program designed to pursue reductions in hydrocarbons, nitrogen oxides, carbon monoxide, and particulate matter from existing diesel vehicles and equipment
by the installation of pollution-reducing technology and other actions, such as reduced idling.
These programs promote the use of advanced emission control equipment reducing
pollution from existing fleets. As part of these efforts, OAR is working to establish
tribal community retrofit projects. One announced project involves a fleet of diesel
vehicles from the Winnebago Tribes in Nebraska which will be retrofitted with pollution-reducing technology. An objective of this project is to address the disproportionate exposure risk for tribal children who live in this community.
OAR is entering into retrofit funding cooperative agreements with a number of
organizations. Competitive proposals for funding which address environmental justice issues in the areas served by the projects were required. The evaluation criteria
included environmental justice factors.
Clean School Bus USA. In April 2003, EPA launched Clean School Bus USA,
a new childrens health initiative aimed at reducing air pollution from school buses.
This program is an outgrowth of EPAs Voluntary Diesel Retrofit Program. Across
the country, 24 million children ride school buses spending a total of between 20
minutes and several hours per day on these vehicles. Unfortunately, older school
buses can pollute up to six times more than buses using clean technology. Children
are especially vulnerable to the effects of diesel emissions which can cause respiratory disease and exacerbate long term conditions such as asthma. Reducing pollution from school buses will help improve local air quality and reduce childrens
exposure to diesel exhaust. Children in environmental justice areas who suffer from
asthma caused by diesel exhaust will benefit by the removal of one more asthma
trigger.
Smartway Transport Partnership. Under this voluntary program, another initiative is the National Transportation Idle Free Corridors Project which focuses on
reducing emissions from long duration truck and locomotive engine idling at locations within urban areas (locomotive switch yards) and along major highway interstates (truck stops). Many of these locations are in environmental justice areas and
will benefit from the achieved emissions reductions.

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